Citation Nr: 23037745 Decision Date: 07/07/23 Archive Date: 07/07/23 DOCKET NO. 18-12 452 DATE: July 7, 2023 ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is as likely as not related to his active duty service. 2. The Veteran's tinnitus is as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1953 to December 1956. In April 2023, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection for bilateral hearing loss and tinnitus Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the evidence is persuasively against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In addition to the basic service connection principles outlined above, hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the pure tone threshold for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran contends that his bilateral hearing loss and tinnitus are due to military service. The Veteran's Certificate of Release or Discharge from Active Duty confirmed that while in service, the Veteran worked as an auto mechanic. In August 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The Veteran's pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 60 60 65 65 LEFT 30 55 60 55 60 The average pure tone threshold findings at 1000, 2000, 3000, and 4000 Hertz (Hz) for the right ear was 63 and 58 for the left ear. The Veteran's speech discrimination scores on the Maryland CNC were 88 percent in the right ear and 92 percent in the left. The examiner noted bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz (Hz). However, the Veteran did not report tinnitus. The Veteran's bilateral hearing loss did not exist prior to service. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the enlistment and separation test that was performed was whispered voice test, and this test is not a reliable test to identify the presence of hearing loss that is typically found with military noise exposure. The examiner noted no evidence of complaints of hearing loss or tinnitus in the C-File. The first complaint was more than 60 years after service. The examiner stated that medical literature indicates that exposures to high intensity noise levels, like industrial/construction noise, printing work, music, or military noise, can cause permanent or progressive hearing loss during prolonged periods of exposure. Further, no retroactive hearing effects were expected after years of being exposed to high intensity noise. The examiner stated that it is highly probable that VA evaluations show a bilateral hearing loss that is due to presbycusis or hearing loss which is expected as a part of the normal aging process. It is reasonable to conclude that the bilateral hearing loss is less likely as not related to the military service. The Veteran's hearing loss had an impact on the ordinary conditions of daily life, i.e., he had difficulty understanding conversations, and he spoke loudly. There were no occupational functioning effects reported. In his November 2017 Notice of Disagreement (NOD), the Veteran stated that his problems began while he was in service. During his April 2023 Board hearing, the Veteran testified that, while in service, he worked as a tank crewman. During training, he shot multiple shells; however, he was not provided ear plugs. He stated that the ringing in his ears began in service and continued. Hearing Loss Based on the results of the VA examination, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. While the Board acknowledges the examiner's opinion, the record establishes that service connection is warranted. The examiner stated that the Veteran's hearing loss did not exist prior to service. Although the examiner stated that it is highly probable that the Veteran's bilateral hearing loss is due to presbycusis or hearing loss expected as a part of the normal aging process, the examiner also stated that the medical literature indicates that exposures to high intensity noise levels, such as military noise, can cause permanent or progressive hearing loss during prolonged periods of exposure. The Board also notes that the Veteran credibly reported experiencing in-service noise exposure when he worked as a tank crewman. Therefore, after resolving all doubt in the Veteran's favor, the Board finds the evidence supports a grant of service connection for bilateral hearing loss, as there is competent and credible evidence of both in-service noise exposure and post-service bilateral hearing loss for VA compensation purposes. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tinnitus The Board finds that service connection for tinnitus is warranted. During his VA exam, the VA examiner noted that the Veteran did not have recurrent tinnitus. However, during his Board hearing, the Veteran testified that he has had tinnitus since service, and the ringing in his ears have been present since then. The Board finds the Veteran's statements of ringing in his ears since service to be credible, and thus, highly probative evidence of a continuity of symptomatology that establishes a basis for service connection. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). The Board also emphasizes that tinnitus is a subjective symptom that is unable to be verified with objective findings. Therefore, after resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The Veteran has a current diagnosis of cervical spine degenerative changes. The Veteran also stated that he has residuals of TBI, to include headaches. He contends that his disabilities are due to military service. During his April 2023 Board hearing, the Veteran testified that he injured his head and upper back/neck when a jeep he was driving was struck by a train. He was taken to the infirmary and was given stitches. The Veteran testified that because of the accident, he has a lump on his head. The Veteran's STRs confirms the April 1956 accident. The STRs also confirms that the Veteran sustained injuries during the accident. However, the Veteran has not been afforded VA examinations to determine whether his current cervical spine disability and whether he has residuals of TBI that are due to military service, to include the in service accident. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Thus, a remand is necessary to afford the Veteran VA exams to determine the nature and etiology of his cervical spine disability and TBI. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any updated relevant VA treatment records not already of record. 2. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination, any relevant private medical records, to include private records from Drs. Latarulo and Forina. Any records obtained should be associated with the claims file. If the records are unavailable, this should be indicated in the claims file. 3. Schedule the Veteran for VA examinations to determine the nature and etiology of his cervical spine disability and claimed residuals of TBI. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. A. Based on a review of the entire record, the examiner should: i. Identify any cervical spine disability that has been present during the period on appeal, i.e., from July 18, 2017, to present. ii. For each diagnosis, determine if it is at least as likely as not (likelihood is less than approximately balanced or nearly equal) that the disability was incurred in or is otherwise related to service, to include the in-service accident. The examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of his condition. The supporting rationale for all opinions expressed must be provided. If any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. B. Based on a review of the entire record, the examiner should respond to the following: i. Determine whether the Veteran has had TBI or residuals of TBI at any time during the period on appeal, i.e., from July 18, 2017. ii. Then, the examiner is asked to opine whether it is at least as likely as not (likelihood is less than approximately balanced or nearly equal) that the TBI or residuals of TBI is related to an in-service injury, event, or disease, to include the in-service accident. The examiner must consider and discuss the Veteran's lay statements regarding the onset and progression of his condition. The supporting rationale for all opinions expressed must be provided. If any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.