Citation Nr: 1640608	
Decision Date: 10/14/16    Archive Date: 10/27/16

DOCKET NO.  12-34 599	)	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

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jesse W. Lemon, Associate Counsel




INTRODUCTION

The Veteran served on active duty from February 1951 to February 1955, and from February 1958 to September 1965, with additional Reserve service concluding in 1990.  This case comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  Jurisdiction over the claims file is currently held by the RO in Montgomery, Alabama. 

This appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a) (2) (West 2015); 38 C.F.R. § 20.900(c) (2015).  


FINDINGS OF FACT

1.  The Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service.

2.  The Veteran's current tinnitus cannot be reasonably disassociated from his military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (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, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection

The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as a result of his exposure to loud noise during Navy Reserve duty service as a pilot.  

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, 1131; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303 (d). 

The term "active military service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.  38 C.F.R. § 3.6 (2015).

ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty, other than full-time duty, prescribed for Reserves, as well as duty, other than full-time duty, performed by a member of the National Guard of any State.  38 C.F.R. § 3.6 (c), (d).  Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA, but the appellant is not entitled to the application of the presumption of soundness or the presumption of aggravation except for his active duty.  38 U.S.C.A. §§ 101 (24), 106, 1110, 1131 (West 2014).  

II. 
Hearing Loss

Under VA regulations, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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.

Here, the Veteran's impaired hearing rises to the level of a disability for VA purposes.  On the March 2011 audiological evaluation, pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
50
55
60
LEFT
40
50
50
50
60

Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 84 percent in the left ear.  These findings are sufficient to establish a current bilateral hearing loss disability. 38 C.F.R. § 3.385.  

The Veteran's Reserve service and Military Occupational Specialty (MOS) is consistent with the loud noise and acoustic trauma he reports.  The Veteran reported that he has over 4,000 hours of flight time.  He stated that he was exposed to loud noise for seven days a month due to his service with Navy Reserve jet squadrons from September 1965 to July 1976.  A January 1976 service treatment record reflects a diagnosis of bilateral sensorineural hearing loss due to aviation-related loud noise.  

The record contains a March 2011 VA examination.  The March 2011 VA examiner opined that service connection for a hearing loss disability was "less likely as not due to noise exposure" in his active military service because the disability did not manifest until ten years after his active duty service.  This opinion lacks probative value as a disorder does not need to be shown in service or soon thereafter.  Service connection is not precluded simply because the criteria for service connection were first met after service.  Instead, the law only requires a basis for attributing the current disorder to military service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that if a hearing loss disability as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service).  The examiner also stated that an opinion regarding service connection for hearing loss could not be reached without resorting to speculation due to the episodic nature of the Veteran's service in the Navy Reserve.  Accordingly, this opinion is of little or no probative value.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The record is devoid of loud noise exposure outside of the Veteran's Reserve service, with the exception of occasional, limited use of power tools and a lawnmower.

In view of the totality of the evidence, including the diagnosis of hearing loss due to aviation-related noise in January 1976, the credibility of the Veteran's statements, the Veteran's documented in-service MOS, the current findings of a hearing loss disability, the diminished probative value of the March 2011 VA examiner opinion and the April 2011 addendum to that opinion, and the lack of evidence of noise exposure outside of Naval Reserve duty, the Board finds that the Veteran's bilateral hearing loss disability cannot be reasonably disassociated from his military service.  Accordingly, service connection for a hearing loss disability is warranted.  See 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

III. Tinnitus 

The Veteran asserts that tinnitus is due to Navy Reserve service.  As noted above, exposure to loud noise has been found.  In addition to recalling noise exposure, the Veteran reported complications from a night flight in January1976 that caused his ears to ring.  Service treatment records reflect the Veteran's complaints of tinnitus that same month.  

The Veteran was afforded a VA examination in March 2011 which noted tinnitus.  The examiner opined that tinnitus was "less likely as not" due to noise exposure in the military due to "its reported time of onset."  This opinion lacks probative value as a disorder does not need to be shown in service or soon thereafter.  Service connection is not precluded simply because the criteria for service connection were first met after service.  Instead, the law only requires a basis for attributing the current disorder to military service.  See Ledford, 3 Vet. App. at 89.  The examiner also stated that an opinion regarding service connection for tinnitus could not be reached without resorting to speculation due to the episodic nature of the Veteran's service in the Navy Reserve.  Accordingly, this opinion is of little or no probative value.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The January 1976 in-service diagnosis of tinnitus and hearing loss due to aviation-related noise exposure supports the Veteran's assertions in this matter.  Furthermore, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As ringing of the ears is observable to the layperson, the Veteran's statements regarding time of onset are competent evidence.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  In that regard, his statements during the examination indicate that the tinnitus began during Reserve service in 1976 and has continued to the present.  The Board finds these statements are credible.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The Veteran has reported that he experiences tinnitus, and he is considered competent to report the observable manifestations of his claimed disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In view of the totality of the evidence, including the Veteran's documented in-service MOS, the current findings of tinnitus, the diminished probative value of the March 2011 VA examiner opinion and April 2011 addendum, the January 1976 diagnosis of aviation-related hearing loss and tinnitus, and the competent and credible reports of in-service hazardous noise exposure and continuous symptoms of tinnitus that began during military service, the Board finds that Veteran's tinnitus cannot be reasonably disassociated from his active military service.  


ORDER

Service connection for a bilateral hearing loss disability is granted.

Service connection for tinnitus is granted. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs