Citation Nr: 1641751	
Decision Date: 10/28/16    Archive Date: 11/08/16

DOCKET NO.  10-48 359	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

E. Redman, Counsel
INTRODUCTION

The Veteran served on active duty from July 1969 to June 1989.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama

In July 2016 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing.  


FINDINGS OF FACT

1.  The Veteran was exposed to excessive noise from aircraft during service.

2.  The Veteran's current bilateral hearing loss was caused by exposure to excessive noise during service.  

3.  The Veteran's current tinnitus is associated with his hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, to include organic diseases of the nervous system, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

VA has specifically defined the term "disability" for service connection claims involving impaired hearing.  38 C.F.R. § 3.385.  "[I]mpaired 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 Test are less than 94 percent."  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits.  In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 

A disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54. 

The Veteran claims that he is entitled to service connection for bilateral hearing loss because it was caused by in-service noise exposure.  The evidence of record reveals that the Veteran's military occupational specialty was air operations officer and naval weapons system officer.  He testified at the videoconference hearing that he was a navigator, worked on the flight line, and flew C-130s and F-4 fighter jets.  The service treatment records are absent for any complaints for or treatment of decreased hearing acuity or tinnitus during his period of active duty.  The Veteran's hearing at separation was recorded as normal pursuant to VA standards.  The post service medical evidence, specifically, a June 2016 private audiogram, shows that the Veteran is diagnosed with bilateral hearing loss which meets the criteria for hearing loss disability pursuant to 38 C.F.R. § 3.385.  According to the September 2008 VA examination report and September 2010 letter from a private physician, Dr. Frankel, the Veteran has a diagnosis of tinnitus.  As such, the Veteran has a current disability with respect to both claims.

Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of claims for service connection for hearing loss and tinnitus.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (jet aircraft noise).  Based on the service records, and the Veteran's credible statements, the Board concludes that the Veteran was exposed to excessive noise from aircraft during service, satisfying the in-service event or injury element of both claims on appeal.

With respect to whether the Veteran's bilateral hearing loss and tinnitus are etiologically or causally related to noise exposure during service, there are two medical opinion reports, one in favor of the claims, and one against the claims.  In this regard, the Veteran underwent a VA examination in September 2008.  The report of that examination reflects that military noise exposure was significant in that the Veteran had 3500 hours of flight time on C-130s and fighter jets.  It was noted that he also worked on the flight line and that he used hearing protection.  Furthermore, the Veteran reported tinnitus, which really became apparent eight to nine months ago.  Although the Veteran reported noticing tinnitus when he was out of service, he was not sure when.  The examiner opined that without a specific time frame of onset, the etiology of the tinnitus could not be determined.  Audiogram results reflected normal right ear hearing and left ear hearing loss for VA purposes.  The examiner noted that there was only a 10 decibel shift in hearing at 6000 Hz between induction and separation physicals.  A standard shift was not found at any frequency, in either ear.  Because the Veteran's hearing was found to be normal for VA rating purposes in both ears at his retirement physical, the examiner opined that it is less likely as not that military noise exposure caused the Veteran's hearing loss. 

A September 2010 private medical opinion from Dr. Frankel indicates that the Veteran was an aviator in service, flying F-4s for four years without hearing protection (except a helmet and basic ear plugs).  The Veteran had no post-service noise exposure.  Doctor Frankel opined that the Veteran's hearing loss, which is of a noise-induced pattern, is more likely than not related to his military service and his tinnitus is associated with this.  

In this case, the evidence, as it now stands, is at least in relative equipoise as to whether the Veteran's bilateral hearing loss and his tinnitus are both causally related to his in-service acoustic trauma.  In reaching this conclusion, the Board recognizes that the September 2008 VA examiner provided medical opinions against the claims.  However, the examiner based this opinion mainly on the normal hearing (for VA purposes) found at separation and the lack of a significant threshold shift in hearing from induction to separation.  However, as previously noted, there is no requirement that hearing loss first manifest during service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Moreover, the examiner's opinion against the tinnitus claim rests on the lack of a specific time frame of onset.  In this regard, the Board notes that tinnitus need not manifest at any specific time in order for service connection to be granted.  Additionally, the examiner did not address whether the tinnitus could be a symptoms of the Veteran's hearing loss.

Here, the Board finds that the medical evidence, consisting of the VA opinion against the claims and the private opinion in favor of the claims, is at least in equipoise as to whether the Veteran's bilateral hearing loss and his tinnitus are causally related to his in-service acoustic trauma.  Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board will grant service connection for bilateral hearing loss and tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.




____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs