Citation Nr: 1548549 Decision Date: 11/18/15 Archive Date: 11/25/15 DOCKET NO. 14-12 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Sparker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 10, 1970 to June 9, 1970 and January 22, 1991 to March 22, 1991. He had additional service in the Army Reserves, the dates of which have not been verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was caused by noise exposure during active service. 2. The Veteran's tinnitus was caused by noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, he contends that his bilateral hearing loss and tinnitus resulted from noise exposure during his active duty for training and over forty-one years of reserve duty, as stated in his October 2012 statement. Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) 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 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Tinnitus is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (hereinafter DORLAND'S ) 1714 (28th ed. 1994)). It is generally subjective in type. DORLAND'S, 1956 (31st ed. 2007). Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in 38 U.S.C.A. § 1101 § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period"). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss and tinnitus if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A current bilateral hearing loss disability is established, as shown on VA examination in February 2014. That examination revealed puretone thresholds for the right ear of 45 decibels at 4000 hertz and puretone thresholds of 45 decibels at 4000 hertz for the left ear. See 38 C.F.R. § 3.385. The presence of tinnitus is also established based on the Veteran's own lay observation and an October 2012 letter from a private audiologist who diagnosed the Veteran with tinnitus. The Veteran described "constant and continual" ringing in his ears in his April 2011 statement. Thus, a current disability of tinnitus is established. See McLendon v. Nicholson, 20 Vet. App 79, 84 (2006). The Veteran's service treatment records reveal no complaints or findings of hearing loss or tinnitus during any period of active duty. Therefore, bilateral hearing loss and tinnitus did not manifest during his active service. However, the Veteran has provided competent and credible statements concerning exposure to acoustic trauma in service. Thus, an in-service injury is shown. Regarding the final element of service connection, the medical nexus element, the Board finds that the evidence of record is in equipoise as to a relationship between the Veteran's current hearing loss and tinnitus and his in-service noise exposure. To that end, the Veteran was provided a VA audiological examination in July 2011. The examiner opined that because the release from active duty examination indicated normal hearing, it was less likely as not that the Veteran's hearing loss and tinnitus is related to service noise exposure. The Veteran was also evaluated by a private audiologist who positive opinion. In a November 2012 letter, the audiologist stated that the Veteran's hearing loss had a typical noise-induced configuration caused by military service. The audiologist then reviewed the Veteran's service treatment records dated in May 1970 and October 1990 and noted "a drop in threshold levels at 4[000] Hertz and 6[000] Hertz." Ultimately, the audiologist concluded that, "it is my opinion this hearing loss and tinnitus were caused by noise exposure during his military service." The same audiologist provided a clarifying opinion in March 2014. In reaching his conclusion that the Veteran's exposure to weapons caused his hearing loss and tinnitus, the audiologist opined that he "gave more weight more weight to his periods of active duty for training and inactive duty for training because of the acoustical trauma he experienced form firing high decibel heavy weapons," and that "[h]e fired live rounds without the use of hearing protection." The audiologist also stated that the Veteran's hearing loss is not likely related to his civilian occupation because he was only exposed to low decibel equipment with the use of hearing protection. Further, he stated that "[w]ith all my years of experience as an audiologist, it is very apparent to me, supported by creditable scientific studies, that the acoustical trauma for high decibel heavy weapons, without the use of hearing protection, can cause damage to the hair cells of the cochlea." The audiologist again concluded, "[the Veteran's] hearing loss and tinnitus, more likely than not, were caused by heavy weapons noise exposure during his times of active duty and inactive duty for training." The Veteran was examined by a different VA examiner in February 2014. The examiner opined that it was more likely than not that the Veteran's hearing loss and tinnitus were caused by his civilian occupation and not his military service. In this regard, the VA examiner opined that it was more likely than not that the Veteran's hearing loss is due to his civilian occupational noise exposure as a full-time heavy equipment operator for twenty years and a part-time operator for ten years after. He also noted that the Veteran has a history of recreational firearm use for hunting which must be factored into the etiology of his hearing loss. He further noted that the Veteran did not complain of any tinnitus while in the service or at the time of discharge and that all of his Army Reserve physical examinations were negative for tinnitus or ear noises. While only periods of active duty from February 10, 1970 to June 9, 1970 and January 22, 1991 to March 22, 1991 have been verified, a review of the record does suggest that the Veteran had some additional periods of active duty for training and/or inactive duty for training throughout the years. As both the favorable and unfavorable medical opinions of record hold probative value, as both examiners offered a rationale for their opinions, the Board finds that the evidence of record is in equipoise. Therefore, resolving any doubt in the Veteran's favor, entitlement to service connection for hearing loss and tinnitus is granted. ORDER Entitlement for service connection for bilateral hearing loss is granted. Entitlement for service connection for tinnitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs