Citation Nr: 1626660	
Decision Date: 07/05/16    Archive Date: 07/14/16

DOCKET NO.  12-35 673	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Schulman, Counsel


INTRODUCTION

The Veteran had active service with the United States Air Force from July 1966 to July 1970. 
 
This matter comes These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which denied service connection for hearing loss and tinnitus.
 
The Veteran testified before the undersigned Veterans Law Judge at a hearing held in May 2016. A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1. The Veteran was exposed to acoustic trauma during service.

2. Hearing loss is related to in-service noise exposure.

3. Tinnitus is related to in-service noise exposure.


CONCLUSIONS OF LAW

1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2015).

2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Board is granting, in full, the benefits sought on appeal and VA has no further duty to notify or assist.

Service Connection for Hearing Loss and Tinnitus

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1131 (West 2014); see also Degmetich v. Brown, 104 F.3d 1328 (1997). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that evidence of a recent diagnosis of a disability prior to a claim for benefits based on that disability, is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency).

The Veteran has been diagnosed with organic diseases of the nervous system -sensorineural hearing loss and tinnitus - which are "chronic diseases" listed under 38 C.F.R. § 3.309(a). The presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service and current manifestations of the same disease, the disease shall be presumed to have been incurred in service unless clearly attributable to intercurrent causes. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b); Walker, supra. at 1304 (holding that the provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). 

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

The Veteran's DD-214 confirms that his primary duty during service was as a jet engine mechanic, and during his May 2016 hearing before the undersigned, he reported that often such work was "hurried" and done without earplugs or other hearing protection. The Board finds his assertion regarding in-service exposure to loud noise to be competent and credible. 

Service treatment records show that on audiological evaluation in July 1966, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
X
0
LEFT
0
0
0
X
0

A year and half later, audiological evaluation in January 1969 revealed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
10
10
10
10
10

In October 1969, an audiological evaluation expressly noted the Veteran's exposure to jet engine noise on the flight line. Pure tone thresholds at that time, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
0
LEFT
5
5
10
10
10

On separation examination in June 1970, the Veteran denied hearing loss or ear trouble, and pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
5
LEFT
10
5
5
5
5

VA considers normal hearing to be from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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.

While the Veteran's hearing was "normal" for VA purposes throughout service, Hensley, supra., his hearing acuity was nonetheless diminished between the time he entered service and his separation. However, without evidence that hearing loss became disabling during service - or within one year of separation - service connection cannot be granted on a presumptive basis. Nonetheless, as the evidence below shows, the Veteran experienced ongoing and worsening symptoms following separation, and the weight of the competent medical evidence confirms that hearing loss and tinnitus were incurred as a result of service.

Following separation from service, the Veteran complained of "occasional" ringing in the ears in May 1998, and in September 2011, he reported ongoing, but intermittent tinnitus in both ears. The Veteran also reported slow, progressive bilateral hearing loss. On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
25
35
40
LEFT
20
20
25
40
45

The diagnoses were noise-induced sensorineural hearing loss, and tinnitus. The evaluating private physician reviewed the Veteran's medical treatment records as well as his "service history," and concluded that it is at least as likely as not "that his hearing loss and tinnitus [are] a result of his military service since there is no other history of noise exposure."

On VA examination in May 2012, audiological evaluation showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
25
35
35
LEFT
20
20
25
30
35

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. The examiner diagnosed sensorineural hearing loss bilaterally, and concluded that hearing loss was not related to service because there had been "no significant threshold shift" in his hearing between induction and separation from service, and because the Veteran had a "long history of occupational noise exposure." The examiner also opined that tinnitus was less likely than not related to service, for the same reasons.

The Board finds that VA examiner's opinions to be of limited probative weight. In particular, while the examiner stated that the Veteran's hearing was "within normal limits" throughout service, she failed to explain why the reduction in hearing acuity from induction to separation did not represent a "significant" shift. Additionally, although she asserted that the Veteran had a long history of occupational noise exposure, it is unclear why such exposure would be any more or less damaging to the ears than his in-service exposure to jet engine noise.

During his hearing before the undersigned, and in his August 2012 notice of disagreement, the Veteran's post-service occupational experience was revealed to include having worked for General Motors. However, in contrast to his in-service exposure to aircraft, the Veteran worked in a small machinery repair facility and always had hearing protection. The Board finds that the examiner's opinion was made without adequate consideration of the nature of the Veteran's in-service or post-service exposure.

The private September 2011 opinion is also flawed in that it suggests the Veteran had "no other history of noise exposure" after separating from service - an assertion that is inconsistent with the Veteran's own reports of employment at General Motors. Though he had hearing protection, his employment still subjected him to some noise exposure. While therefore of reduced probative value, the opinion is bolstered by a January 2013 assessment from a separate physician who opined that he had "reviewed [the Veteran's] medical records regarding his hearing loss and [it is] reasonable to assume that [his] hearing problem may be related to his military duty." This opinion itself is couched, but nonetheless supports the September 2011 positive nexus opinion.

In total, the Board finds the opinions of private doctors and the VA examiner to be in relative equipoise. However, given the Veteran's competent and credible assertions of continuous progressive hearing loss since service, and continuous tinnitus symptoms since service, service connection for both is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs