HEARING LOSS

Summary

The Veteran, an Air Force Veteran who served from January 1968 to January 1972, appeals the denial of service connection for bilateral hearing loss and tinnitus. The Veteran claims these conditions are due to noise exposure during service, specifically as a Morse intercept operator and from acoustic trauma experienced while wearing a headset. Service treatment records were negative for hearing loss complaints. However, a May 2014 VA otolaryngology note documented the Veteran's exposure to high-frequency military noise, including Morse intercept operator duties and C-141 aircraft operations, and opined that the hearing loss was undoubtedly caused at least in part by this exposure. The Veteran also reported experiencing tinnitus after listening to signals all day during service. A December 2015 VA examination noted the Veteran's exposure to noise under earphones and opined that the hearing loss was less likely than not service-related, attributing it more to post-service occupational noise. Conversely, the same VA otolaryngologist opined that the tinnitus was undoubtedly caused at least in part by the in-service noise exposure. The Board found both the May 2014 and December 2015 opinions to be competent and equally probative. Due to the conflicting opinions and applying the benefit of the doubt, the Board found the evidence in approximate balance and granted service connection for both bilateral hearing loss and tinnitus.

Rationale

Current bilateral hearing loss diagnosed in December 2015 VA examination.; Conflicting medical opinions: May 2014 VA otolaryngologist opined hearing loss was undoubtedly caused at least in part by in-service noise exposure; December 2015 VA examiner opined less likely than not service-related.; Benefit of the doubt applied due to approximate balance of evidence.

Full Decision Text

Citation Nr: 22016640
Decision Date: 03/23/22	Archive Date: 03/22/22

DOCKET NO. 17-51 932
DATE: March 23, 2022

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.

FINDINGS OF FACT

1. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss began during active service.

2. The evidence is at least evenly balanced as to whether the Veteran's tinnitus began during active service.

CONCLUSIONS OF LAW

1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 

2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1968 to January 1972. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

On his VA Form 9, dated October 2017, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for March 2020. However, the Veteran requested that his hearing be postponed because he would be out of town. A hearing was subsequently scheduled for November 2021, but the Veteran failed to report for this hearing. VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing. Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will therefore be considered withdrawn. 38 C.F.R. § 20.704(d).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Certain diseases, to include sensorineural hearing loss and tinnitus, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for certain chronic disabilities such as sensorineural hearing loss and tinnitus is through a demonstration of continuity of symptomatology.

In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 
 a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Entitlement to service connection for bilateral hearing loss and tinnitus.

The Veteran asserts that his current bilateral hearing loss and tinnitus disabilities were incurred in service as he was exposed to loud noises during his time in service. Specifically, the Veteran asserts that he had developed hearing loss working as a Morse intercept operator and was subjected to acoustic trauma as he had to listen with a headset on all the time. See October 2015 correspondence.

The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

Regarding the Veteran's bilateral hearing loss disability, hearing loss as defined by 38 C.F.R. § 3.385 was diagnosed during a December 2015 VA examination. Accordingly, bilateral hearing loss has been shown during the pendency of this appeal and the first element of service connection has been met.

Therefore, the question to be decided is whether the current bilateral hearing loss disability is associated with the Veteran's active duty.

The Veteran maintains that he was exposed to high frequency sounds in his occupational specialty of Morse intercept operator. See DD Form 214. His service treatment records (STRs) are negative for complaints of, treatment for, or findings of bilateral hearing loss.

In a November 2010 VA primary care note, a medical resident reported that the Veteran presented to the "primary care clinic for his first visit to establish care and obtain hearing aids for his hearing loss." Later that month, the Veteran underwent an audiology evaluation. It was noted that the Veteran "is an experienced hearing instrument user", and, at that moment, was using hearing aids that he obtained from a private provider.

A May 2014 VA otolaryngology note documented that the Veteran was exposed to high frequency military noise, including Morse intercept operator, launching and landing of C-141, and M-16 rifle range gunfire. The Veteran reported noticing a "temporary [hearing] threshold after continued noise exposure." The VA otolaryngologist noted that the Veteran had been wearing hearing aids since age 44. The VA otolaryngologist opined that the Veteran's hearing loss was "undoubtedly caused at least in part by exposure to excessive noise without adequate ear protection while serving on an active [A]ir [F]orce base while on active duty in 1968-1972." 

The Veteran underwent a VA examination in December 2015. The VA examiner noted that the Veteran was a Morse code operator in the Air Force. The Veteran described "exposure to 'a lot of high frequency radio noise under earphones' during shifts."
. The Veteran reported noticing a "temporary [hearing] threshold after continued noise exposure." The VA otolaryngologist noted that the Veteran had been wearing hearing aids since age 44. The VA otolaryngologist opined that the Veteran's hearing loss was "undoubtedly caused at least in part by exposure to excessive noise without adequate ear protection while serving on an active [A]ir [F]orce base while on active duty in 1968-1972." 

The Veteran underwent a VA examination in December 2015. The VA examiner noted that the Veteran was a Morse code operator in the Air Force. The Veteran described "exposure to 'a lot of high frequency radio noise under earphones' during shifts." The Veteran reported first noting a hearing loss approximately 23 years post discharge. The VA examiner noted that the Veteran "worked in a plant for 20 years where he was exposed to noise." The December 2015 VA examiner opined that it was less likely than not "that the onset of [V]eteran's [] hearing loss is associated with [s]ervice related noise exposure/acoustic trauma and more likely due to or the result of his post discharge occupational noise exposure."

Regarding the Veteran's tinnitus disability, the Veteran reported that when he was off duty during military service his ears would still be ringing. He reported that he still gets ringing in his ears. See October 2015 correspondence. Accordingly, tinnitus has been shown during the pendency of this appeal and the first element of service connection for tinnitus has been met.

Therefore, the question to be decided is whether the current tinnitus disability is associated with the Veteran's active duty.

The May 2014 VA otolaryngology note indicated that the Veteran "[f]requently noted tinnitus after listening to signals all day." The Veteran reported first noticing tinnitus in 1970 or 1971. The VA otolaryngologist opined that the tinnitus was "undoubtedly caused at least in part by exposure to excessive noise without adequate ear protection while serving on an active [A]ir [F]orce base while on active duty in 1968-1972." 

Both medical opinions of record are considered competent medical evidence and neither opinion is deemed more probative than the other, as both are based upon consideration of the relevant facts in this case and are supported by an adequate rationale. Therefore, after reviewing the conflicting medical opinions and after resolving reasonable doubt in favor of the Veteran, the Board finds the evidence to be at least in approximate balance in showing that the Veteran's current bilateral hearing loss and tinnitus disabilities are related to his in-service noise exposure. As the reasonably doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection for bilateral hearing and tinnitus is warranted.

 

 

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Oquendo, L., Associate Counsel

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.