Citation Nr: 1641540 Decision Date: 10/26/16 Archive Date: 11/08/16 DOCKET NO. 14-28 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. These matters come to the Board of Veterans' Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2012, a statement of the case was issued in June 2014, and a substantive appeal was received in August 2014. The Veteran testified at a Board hearing in July 2016; the transcript is of record. FINDINGS OF FACT 1. The record is at least in equipoise as to whether the Veteran's current bilateral hearing loss was manifested during the Veteran's period of active service. 2. The record is at least in equipoise as to whether the Veteran's current tinnitus was manifested during the Veteran's period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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 disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Hearing loss is considered to be 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 159 (1993). The Veteran claims hearing loss and tinnitus due to in-service noise exposure. His military occupational specialty (MOS) was airplane mechanic in the United States Army. This DD Form 214 indicates that he had 1 year, 3 months, and 20 days of foreign and/or sea service, which included service in the Republic of the Vietnam. The Veteran testified that he served in Army aviation stateside and in Vietnam. He served as a crew member on Hueys, and also served as a mechanic and door runner. He testified that he did not wear any hearing protection to eliminate noise, but rather wore a headset and flight helmet. 07/14/2016 Hearing Transcript at 3. He testified that he experiencing constant ringing in his ear following service. Id. at 4. Service treatment records do not reflect any complaints or diagnoses of hearing loss or tinnitus. In May 2011, the Veteran underwent a VA audiological examination. The examination results revealed bilateral hearing loss for VA purposes and the examiner diagnosed sensorineural hearing loss, bilaterally, and tinnitus. The examiner opined that after review of service medical records, personal interview and audiometric testing, it is the opinion of this examiner that the Veteran's hearing loss and tinnitus are less likely as a result of noise exposure during military service, hearing was within normal limits during military service. The examiner, however, did not provide a rationale for the negative etiological opinion and relied on a flawed premise - that hearing loss needs to be shown in service. In February 2012, the Veteran underwent a private audiological evaluation with K.L.B., Au.D. K.L.B. found a moderate to profound, mid-to-high frequency sensorineural hearing loss in both ears. The examiner acknowledged that the Veteran served in the Army as a helicopter crewmember. He served in Vietnam where he was exposed to excessive noise levels from various aircraft engine noise as well as other excessive noise levels associated with combat. The examiner noted that he experiences chronic and constant tinnitus which is commonly associated with hearing loss, although tinnitus may be present when hearing threshold levels are normal and can develop at any time. The examiner noted that the Veteran reported that his tinnitus began while in the military. The examiner reviewed the Veteran's service records and found that he had normal hearing threshold levels upon entrance into service and separation from service. The Veteran denied receiving a hearing test when he separated from service. Based on the examiner's interview with the Veteran and review of his military service records, the examiner felt it is at least as likely as not that his hearing loss and associated tinnitus was contributed to by noise exposure which occurred during his military service. 03/28/2012 Medical Treatment Record-Non-Government Facility. In September 2014 correspondence, K.L.B. noted that the Veteran was exposed to excessive noise levels from various aircraft engines noise as well as other excessive noise levels associated with combat while performing his job duties as a helicopter crewmember. He was not provided consistent or adequate hearing protection. He also experiences chronic and constant subjective tinnitus which is commonly associated with hearing loss, although tinnitus may be present when hearing threshold levels are normal, may develop at any time, and can be aggravated by noise exposure. The Veteran reported that his tinnitus began while in service. K.L.B. noted review of the Veteran's military service records, noting that his separation examination reflects that his hearing thresholds improved compared to his induction physical. The examiner opined that it is unlikely for hearing thresholds to improve, especially after being exposed to excessive noise levels. The examiner opined that this test is invalid. Based on the examination, review of his military service records, and the interview with him, the examiner felt that it is at least as likely as not that his hearing loss and chronic and constant tinnitus was contributed to by noise exposure during his military service. The opinion was based on the fact that he was exposed to excessive noise levels while in the military without the benefit of adequate hearing protection and he stated that his tinnitus began while in service. 10/03/2014 Medical Treatment Record-Non-Government Facility. The evidence of record establishes that the Veteran had noise exposure during his active service consistent with the circumstances of such service. Additionally, there is post-service competent evidence of bilateral hearing loss per § 3.385 and tinnitus. As such, the first two elements of service connection are established. Turning to the third element, the May 2011 VA examiner provided a negative etiological opinion pertaining to the Veteran's hearing loss and tinnitus, but as detailed did not provide a rationale for the negative opinion. In contrast, K.L.B. provided a positive etiological opinion after examining the Veteran and reviewing his enlistment and separation examinations, and provided an appropriate rationale for the opinion. Specifically, the examiner explained that it is unlikely for hearing thresholds to improve, especially after being exposed to excessive noise levels. The examiner also relied on the Veteran's report of not being provided consistent or adequate hearing protection. Additionally, the Veteran reported the onset of tinnitus during active service. Despite the fact that the Veteran submitted his claim for compensation many years after separation from service and there are no post-service treatment records reflecting hearing loss and tinnitus, the Board finds the Veteran's assertions of in-service hearing loss and ringing in his ears due to exposure to hazardous noise levels to be consistent with his MOS and the duties thereof in service. The Veteran is competent to attest to problems with hearing and ringing in his ears, and the Board finds these assertions to be credible as well. In light of the Veteran's in-service noise exposure, the fact that he did not always wear adequate hearing protection during service, and the fact that he reports experiencing ringing in his ears during service, the Board finds the evidence is in equipoise with respect to whether his bilateral hearing loss and tinnitus are related to his active service. Furthermore, the Board notes that in the case of chronic diseases under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As indicated, sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, and as such are chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; Fountain v. Shinseki, 27 Vet. App. 258, 271 (2015); 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the third element of service connection has been established and service connection is warranted for hearing loss and tinnitus. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ PAUL SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs