Citation Nr: 1228958 Decision Date: 08/23/12 Archive Date: 08/30/12 DOCKET NO. 10-16 767 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Dept. of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction rests with the RO in Newark, New Jersey, from which the appeal was certified in June 2010. The Veteran testified at a June 2012 hearing sitting at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. At the hearing, he submitted an April 2011 private audiology evaluation report accompanied by a waiver of review by the Agency of Original Jurisdiction. Accordingly, appellate review may proceed. The appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The service treatment records do not reflect complaints or a diagnosis of hearing loss or tinnitus for VA purposes in service or at service separation. 2. Bilateral hearing loss and tinnitus are related to active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2011). 2. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2011); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be granted for sensorineural hearing loss if it manifests in service or manifests to a compensable degree within one year of service separation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Impaired hearing is considered a disability for VA purposes 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 (2011). The service treatment records, including the May 1952 enlistment examination report and the November 1955 service separation examination, do not reflect objectively documented evidence of hearing loss or tinnitus or complaints of hearing impairment or tinnitus during service or at service separation. At both examinations, the whisper test result was 15/15 in each ear, but pure tone results at the thresholds identified in 38 C.F.R. § 3.385 were not tested. There is also no post-service evidence of record, dated within one year of the Veteran's service separation, showing bilateral hearing loss or tinnitus that manifested to a compensable degree. 38 C.F.R. §§ 3.307, 3.309 (2011). Nevertheless, service connection for hearing loss and tinnitus can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155 (1993). The earliest documented post-service diagnosis of bilateral hearing loss was made in May 2004 by the Veteran's private treating audiologist, who found that the Veteran had normal to moderately severity sensorineural hearing loss in the right ear, and normal to severe sensorineural hearing loss in the left ear. Normal sloping to moderately severe sensorineural hearing loss, with Hertz readings that meet VA's criteria for a hearing loss disability, was diagnosed at the June 2009 VA examination. The Veteran testified at his June 2012 Board hearing that his tinnitus began during service and has continued through the present time. The Board finds that this testimony is credible lay evidence. See Duenas v. Principi, 18 Vet. App. 512 (2004). Tinnitus was also diagnosed in the post-service period as documented in the June 2009 VA audiology examination report. Two opinions of record discuss the relationship between the Veteran's hearing loss and tinnitus, and service. The July 2010 private audiologist's opinion letter concluded that the Veteran's hearing loss was manifested in a pattern consistent with noise-induced hearing loss, the majority of which resulted from working around jet engines during service. Further, the tinnitus was due to the hearing loss, which was in turn due to the Veteran's history of in-service noise exposure. Conversely, the June 2009 VA examiner's opinion concluded that the Veteran's hearing loss was less likely as not the result of service based on the Veteran's 10-plus years of post-service noise exposure, the lack of documented hearing loss until 2004, the type of hearing loss found on examination (progressive onset) which was commonly symptomatic of hearing loss due to old age, genetics, medical conditions, or recent noise exposure, and the lack of evidence showing that hearing loss was more likely due to in-service noise exposure versus those other potential causes. He also concluded that tinnitus was not caused by or a result of active service as there was no evidence documenting that tinnitus was incurred in service, and no currently diagnosed ear-related service-connected condition that would support a relationship between tinnitus and service. These opinions were both based on a clinical evaluation of the Veteran's hearing and his reported history of noise exposure while on active duty. While generally probative, each opinion fails to address certain evidence of record. The July 2010 private opinion does not address the Veteran's post-service recreational noise exposure which he reported at the June 2009 examination as having occurred without hearing protection. The June 2009 VA examiner's opinion points out that post-service recreational noise exposure, but does not comment as to the frequency of that exposure, and highlights the Veteran's 10-plus years of post-service noise exposure working on jet aircraft, but ignores the Veteran's credible lay contention that he used hearing protection as required by his employer for the entirety of his post-service employment as an aircraft mechanic. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). More importantly, the absence in the claims file of post-service documentation of hearing loss or tinnitus until 2004 is irrelevant. Statements with respect to continuity of symptomatology, including the Veteran's statements as to experiencing tinnitus and perceiving a decrease in hearing acuity prior to 2004, are ordinarily credible lay evidence, even without contemporaneous evidence to confirm those statements. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, a complete explanation is provided for each opinion, and it is not clear from the Board's non-medical perspective that the evidence not addressed is fatal to the reasoning set forth in support of each opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Thus, both are probative to address the question of nexus. Ultimately, the Board finds that there is essentially a balance of positive and negative evidence as to the nexus between his hearing loss and service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Resolving doubt in the Veteran's favor, service connection for bilateral hearing loss and for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs