Citation Nr: 1631250 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 13-20 926 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active duty service from August 1955 to August 1959. This appeal to the Board of Veterans Appeals (Board) arose from a December 2011 rating decision in which the Baltimore, Maryland, RO denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus. (Although the Baltimore RO issued the December 2011 decision, the St. Petersburg RO has jurisdiction of the matter.) The Veteran filed a notice of disagreement (NOD) in January 2012. A statement of the case (SOC) was issued in May 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in July 2013. In June 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the Board hearing, the Veteran submitted additional evidence in support of his claim, along with a waiver of initial agency of original (AOJ) consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2015). In July 2016, the Veteran's appeal was advanced on the Board's docket, pursuant to 38 USCA § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2015). This appeal has been processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Veteran also has a separate paperless, electronic Virtual VA file. The documents contained in the Veteran's Virtual VA file are duplicative of ones contains in his VBMS file. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The Veteran's Air Force specialty has been determined to have a high probability of noise exposure, and the Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and there is competent medical and credible lay evidence tending to establish a link between the Veteran's service-to include noise exposure therein-and his current hearing loss. 4. The Veteran currently has tinnitus, and based on the competent, credible and, hence, probative lay statements concerning the onset and continuity of tinnitus, in-service incurrence may be presumed. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss, are met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§1101, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 33.303, 307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the Board's favorable resolution to the claims for service connection for bilateral hearing loss and tinnitus, the Board finds that all necessary actions in connection with the claims have been accomplished. The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus due to the acoustic trauma he experienced during service. Specifically, he contends that he was exposed to noise from jet engines as part of his service duties as an aeromedical specialist, for which he was not provided hearing protection, and that such exposure is the source of conditions for which service connection is sought. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.307, 3.309 (2015); see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). Alternatively, for chronic diseases, as defined by regulation, to include sensorineural hearing loss and tinnitus, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)). Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2015). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the evidence of record in light of the above, and affording the Veteran the benefit of the doubt on certain elements of the claim, the Board finds that service connection for hearing loss and tinnitus is warranted. Initially, the Board notes that the report of a VA audiology examination dated in November 2011 confirms that the Veteran has a current hearing loss disability. See 38 C.F.R. § 3.385 Specifically, the Veteran's auditory threshold at 4,000Hertz is recorded to be 55 decibels for the right ear and his auditory thresholds at 3,000 and 4,000 Hertz are recorded to be 50 and 60 decibels in the left ear. Accordingly, he has a hearing loss disability for VA purposes. Id. The Board also notes that the Veteran's Air Force specialty was aeromedical specialist, which has been determined to have a high probability of noise exposure. See VA Adjudication Procedures Manual "Live Manual" (M21-1) part III, subpt. iv, ch. 4, sec. B.3.d. Accordingly, noise exposure consistent with that occupation is conceded. Thus, the question is one of nexus. As regards to the question of nexus, the evidence fails to establish that a hearing disability was shown to have existed in service, or within one year of the Veteran's separation from service. However, service connection can still be established on the basis of post-service evidence of a nexus between current hearing loss and service. See 38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether such a nexus exists, the Board is mindful that the Veteran's contentions must be considered in light of the circumstances of his service. See 38 U.S.C.A. § 1154(a) (West 2014). Resolving all reasonable doubt in the Veteran's favor, the Board finds that, collectively, lay and medical evidence of record reasonably supports a finding of a medical nexus between the Veteran's current hearing loss and service. In support of his claim for service connection, the Veteran has reported the onset of symptoms of diminished hearing in service or shortly thereafter. The Board notes that the Veteran, as a layperson, is competent to report on matters observed (or, otherwise perceived through the senses) or within his personal knowledge, to include the occurrence of injury or symptoms experienced or observed. See 38 C.F.R. § 3.159(a)(2) (2015); see also Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although the Veteran cannot render the testing results needed to establish a current hearing loss disability for VA purposes, and is not shown to have training or expertise in audiology to provide a persuasive opinion on the medical nexus question solely the basis of his own assertions, his consistent reports that he began noticing hearing loss symptoms during or shortly after service, and that he has continued to experience diminished hearing from service to the present are accepted as credible, especially in light of the fact that in-service noise exposure has been conceded. See 38 U.S.C.A. § 1154(a). As for the medical opinion evidence of record, the Board notes that the VA audiologist who examined the Veteran in December 2011 opined that it was less likely than not the Veteran's hearing loss was caused by or a result of his in-service noise exposure. As rationale for that opinion, the audiologist stated that the Institute of Medicine had concluded that, based on current knowledge of cochlear physiology, there is not a sufficient scientific basis for the existence of delayed-onset hearing loss. Notably, however, the audiologist did not discuss the Veteran's lay statements regarding when he first noticed a decrease in hearing acuity, which undermines that probative value or the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). Notably, also of record is a statement from the Veteran's private physician, R.K., M.D., who opined that at least part of the Veteran's hearing loss can be attributed to his in-service noise exposure. The private clinician indicated that he had reviewed pertinent records provided to him by the Veteran, noting that the Veteran would have been exposed to significant loud airplane noise, among other causes of acoustic trauma. The Veteran also submitted a statement from D.D., a clinical audiologist, who similarly indicated that he had reviewed the Veteran's recent audiogram and history and that it was his opinion the Veteran's hearing loss was more likely than not caused by unprotected noise exposure while in the military. Overall, the Board finds that while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. Here, given the observable nature of the claimed disability and after reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay testimony and medical evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Indeed, there is no indication that either private clinician failed to consider any piece of relevant evidence before providing their favorable nexus opinions. The Board also finds no reason to discount the favorable medical opinions based on the clinicians' expertise and qualifications as medical professionals. Therefore, the Board finds that when reasonable doubt is resolved in the Veteran's favor, the totality of the evidence-to particularly include credible lay assertions as to noise exposure and as to onset and continuity of symptoms, and the probative private medical opinion evidence offered in support of the claim-the Veteran's hearing loss was as likely as not incurred in military service. Accordingly, service connection for bilateral hearing loss is warranted. With regard to claim for service connection for tinnitus, the Board similarly finds that when reasonable doubt is resolved in the Veteran's favor, the evidence supports an award of service connection for that disability as well. Here, as recorded in the December 2011 VA examination report, the Veteran has been diagnosed as having tinnitus. In-service noise exposure has also been conceded. Furthermore, during his June 2016 Board hearing, the Veteran reported the onset of tinnitus to have been within six months of his discharge from service. The Board points out that the Veteran is competent to testify as to the existence of ringing in his ears. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"); Charles, 16 Vet. App. at 374 (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). The Board finds no reason to question the veracity of the Veteran's reported onset of tinnitus within a year of discharge from service, as well as his report of continuity of experiencing such symptoms since that time. The Board notes that recurrent tinnitus warrants a compensable rating. 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. In consideration of the fact that that in-service acoustic trauma has been demonstrated, the Veteran's report of the onset of tinnitus within six months of discharge from service provides the Board a sufficient basis upon which to grant service connection on a presumptive basis in accordance with 38 C.F.R. §§ 3.307 and 3.309 and Fountain, supra. In concluding that service connection if warranted on a presumptive basis, the Board has considered that the VA audiologist opined against an association between the Veteran's tinnitus and service, stating that tinnitus due to noise exposure in known to have a noticeable onset either immediately or soon following the incident. Again, it does not appear as though the audiologist considered the Veteran's reported onset of tinnitus symptoms to have been shortly after service, which undermines the probative value of that opinion. See Stefl, supra. Further, the regulation, as written, provides that certain disabilities that becomes manifest within a year from the date of discharge from service may be presumed to have been incurred in service. Because, in Fountain, the United States Court of Appeals for Veterans Claims (Court) has held that, with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a), the Board finds no reason to reject the Veteran's claim on the basis of the VA audiologist's negative nexus opinion. See 38 C.F.R. §§ 3.303(b), 3.307; Walker, supra. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs