HEARING LOSS

Summary

The appellant is a U.S. Marine Corps Veteran who served from July 1970 to November 1976. The Veteran sought service connection for bilateral hearing loss and tinnitus. The Board found that the Veteran had a confirmed diagnosis of bilateral sensorineural hearing loss and that his military occupational specialty (MOS) indicated a high probability of hazardous noise exposure. While early medical opinions were unfavorable due to a lack of in-service diagnosis, the Board gave greater weight to a June 2023 private opinion and an October 2023 VA opinion. The Board found the October 2023 VA opinion most persuasive, noting it provided adequate rationale and supported the claim, leading to the granting of service connection for bilateral hearing loss. For tinnitus, the Board found it was secondary to the now service-connected hearing loss. The Veteran reported tinnitus onset 20-25 years prior, and both the January 2023 and October 2023 VA examinations opined that tinnitus is at least as likely as not a symptom associated with the hearing loss. The Board found the weight of the competent and credible evidence supported the secondary service connection for tinnitus. Therefore, service connection for both bilateral hearing loss and tinnitus was granted.

Rationale

Confirmed diagnosis of bilateral sensorineural hearing loss; MOS indicates high probability of hazardous noise exposure; October 2023 VA opinion found persuasive, supporting service connection

Full Decision Text

Citation Nr: A25020067
Decision Date: 03/05/25	Archive Date: 03/05/25

DOCKET NO. 240718-456070
DATE: March 5, 2025

ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.

Entitlement to service connection for tinnitus, as secondary to a bilateral hearing loss disability, is granted.

FINDINGS OF FACT

1. It is reasonably shown that the Veteran's bilateral hearing loss disability is related to the Veteran's noise exposure in service.

2. It is reasonably shown by the evidence of record that the Veteran's tinnitus is caused by the Veteran's bilateral hearing loss disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for service connection for tinnitus, as secondary to a bilateral hearing loss disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty in the U.S. Marine Corps from July 1970 to November 1976. 

In the July 18, 2024, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on November 25, 2024. Therefore, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302. 

If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Service Connection

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R.  § 3.303 (a).

Certain chronic diseases (to include hearing loss as an organic disease of the nervous system) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137;   38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that
 presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137;   38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385.

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for a bilateral hearing loss disability.

The Board is bound by favorable findings. With respect to the Veteran's claim of service connection for hearing loss, the AOJ found that:  (1) the Veteran has a confirmed diagnosis of bilateral sensorineural hearing loss, and (2) the Veteran's military occupational specialty (MOS) has a high probability of hazardous noise exposure. 

In an October 2001 examination, the clinician opined that the Veteran's hearing loss was not related to service because of a lack of hearing loss diagnosis during service. 

In a January 2023 hearing loss and tinnitus examination, the clinician opined that it was less likely than not that the Veteran's hearing loss was due to service, due to a lack of a threshold shift in service. The clinician opined that the Veteran's bilateral hearing loss was due to post-military noise exposure. 

In a June 2023 private opinion, the clinician opined that it was more likely than not that the Veteran's hearing loss disability is related to service. 

In an October 2023 hearing loss and tinnitus examination, the clinician opined that the Veteran's hearing loss was due to the Veteran's noise exposure in service. The clinician noted that the Veteran's last audiology examination was more than 6 months prior to the Veteran's separation from service. The clinician stated that it was not possible to rule out a threshold shift during the Veteran's service because audiometry was not tested at 3000 Hz at entrance to service. The clinician also noted that hearing loss was present at 6000 Hz on the June 1976 audiology examination. 

The record contains conflicting medical opinions as to the etiology of the Veteran's bilateral hearing loss disability. There are two examinations (October 2001 and January 2023) which are against the Veteran's claim. In each of these opinions, the clinician heavily relied on a lack of diagnosed hearing loss disability in service. Notably, it is well established in caselaw that the fact that a hearing loss disability was not shown in service is not
 stated that it was not possible to rule out a threshold shift during the Veteran's service because audiometry was not tested at 3000 Hz at entrance to service. The clinician also noted that hearing loss was present at 6000 Hz on the June 1976 audiology examination. 

The record contains conflicting medical opinions as to the etiology of the Veteran's bilateral hearing loss disability. There are two examinations (October 2001 and January 2023) which are against the Veteran's claim. In each of these opinions, the clinician heavily relied on a lack of diagnosed hearing loss disability in service. Notably, it is well established in caselaw that the fact that a hearing loss disability was not shown in service is not fatal to a claim of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Such opinions therefore warrant less probative weight. In support of the Veteran's claim is a June 2023 private opinion, and an October 2023 VA opinion. The June 2023 private opinion does not offer adequate rationale for the opinion offered, and alone is insufficient evidence in this claim. However, the October 2023 VA medical opinion, which is in support of this claim offers a clear understanding of the evidence of record and offers adequate supporting rationale in this matter. It is for this reason that the October 2023 medical opinion is most persuasive in this instance. 

In weighing the evidence of record the Board finds that the only opinion of record which is adequate for rating purposes in this instance is the October 2023 VA medical opinion, which is in support of the Veteran's claim. Under such circumstance where the probative medical evidence of record is in support of the claim, service connection is warranted. Accordingly, the appeal in this matter is granted. 

2. Entitlement to service connection for tinnitus, as secondary to a bilateral hearing loss disability.

As noted above, the Board is bound by favorable findings. With respect to the Veteran's claim of service connection for tinnitus the AOJ has found that (1) the Veteran has a diagnosis of tinnitus (confirmed on examination), and (2) the Veteran's MOS has a high probability of hazardous noise exposure.

In a January 2023 hearing loss and tinnitus examination, the Veteran reported the onset of his tinnitus in 2012. The clinician opined that the Veteran's tinnitus is at least as likely as not a symptom associated with the Veteran's hearing loss disability. 

In a June 2023 private opinion, the clinician opined that it was more likely than not that the Veteran's tinnitus was due to noise exposure in service. 

In an October 2023 hearing loss and tinnitus examination, the Veteran reported onset of tinnitus at least 20 to 25 years prior. The clinician opined that it was at least as likely as not that the Veteran's tinnitus is caused by the Veteran's hearing loss disability. 

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?

It is not in dispute that the Veteran has a bilateral hearing loss disability. The above decision has granted service connection for a bilateral hearing loss disability. It is also not in dispute that the Veteran has tinnitus. What remains for consideration is whether the Veteran's tinnitus is etiologically related to the Veteran's (now service-connected) bilateral hearing loss disability.

In support of the Veteran's claim is the January 2023 and October 2023 hearing loss and tinnitus examination where the clinicians opined that it is at least as likely as not that the Veteran's tinnitus is a known symptoms associated with the Veteran's hearing loss disability. These opinions offered adequate rationale for the opinions offered. The above decision has granted service-connection for a bilateral hearing loss disability and the Board finds that the weight of the competent and credible evidence is in support of this claim that the Veteran's tinnitus is secondary to the Veteran's bilateral hearing loss disability. Accordingly, the appeal in this matter is granted.

 

 

PAULA B. McCARRON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Staskowski, Nichole

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.