Citation Nr: 1644208 Decision Date: 11/22/16 Archive Date: 12/01/16 DOCKET NO. 12-35 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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 M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss for VA purposes is at least as likely as not related to in-service acoustic trauma. 2. The Veteran's current tinnitus had its onset 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, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). Here, given the fully favorable outcome of the below decisions regarding the claims for tinnitus and bilateral hearing loss, the Board finds that a discussion of the duty to notify and assist is not necessary. II. Service Connection The law provides that 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; 38 C.F.R. §§ 3.303, 3.304. 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). A. Bilateral Hearing Loss For purposes of applying the laws administered by VA, impaired hearing will be considered a disability 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 threshold 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 (2015). In the instant matter, the Veteran has a present diagnosis of bilateral hearing loss per the 2011 VA examination report. The Veteran's DD 214 (Certificate of Release or Discharge from Active Duty) confirms his military specialty as an automobile mechanic, and therefore, also confirms his reports of in-service noise exposure associated with that profession. See Certificate of Release or Discharge from active Duty, 11/20/1978. The Board finds that the Veteran was exposed to hazardous noise level during his service as consistent with the duties and circumstances thereof. The remaining question is one of medical nexus between his present hearing loss and his in-service acoustic trauma. Here, the Board recognizes that certain chronic diseases, including organic diseases 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; 38 C.F.R. §§ 3.307, 3.309 (2014). Alternatively, for chronic diseases shown in service, as defined by regulation, 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)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). 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. Id. at 495-97. 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. The Veteran was afforded a VA examination in August 2011. The examiner noted that the Veteran had no family history of hearing loss or ear disease. The examiner also reported that the Veteran worked as a mechanic during service, and in a factory after service where earing protection was optional, although the Veteran reported that when required to go into the noisy areas of the factory, he always wore hearing protection. The Veteran reported not wearing hearing protection during active service. The examiner opined that the Veteran's hearing loss was less likely than not the result of his military acoustic trauma. As rationale, the examiner stated that a review of the claims file revealed a hearing test at induction and separation, both of which revealed normal hearing across all test thresholds bilaterally. The Veteran has also submitted a private examination report and opinion, provided by J.A.E., MD, FACS, dated in May 2012. Dr. J.A.E. also acknowledged the Veteran's in-service acoustic trauma, as well as his post-service work history, in which he used ear protection while exposed to loud noise. Dr. J.A.E. stated that the Veteran has high frequency sensorineural hearing loss, secondary to acoustic trauma sustained during military service. A review of the Veteran's VA treatment records shows a history of audiological evaluations, and documents his history of wearing hearing protection during his post-service career. None of those records provide an etiology opinion as to the cause of the Veteran's bilateral hearing loss. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Based on the above, the Board finds that the evidence is at least equipoise as to whether the Veteran's hearing loss may be attributed to his in-service acoustic trauma. Both the VA examiner and Dr. J.A.E. conducted in-person evaluations of the Veteran's hearing loss. Both acknowledged the Veteran's in-service and post-service history of noise exposure. Both acknowledged his post-service use of hearing protection. Both came to opposite conclusions as to the likely cause of hearing loss. If anything, the Board finds the opinion of Dr. J.A.E. to be more persuasive as the VA examiner's rationale appears to be based exclusively on normal hearing tests conducted upon separation from service. A negative VA medical opinion regarding the etiology of hearing loss cannot be based solely on "normal" audiometric findings recorded in the Veteran's separation examination. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability). Therefore, because an approximate balance of positive and negative evidence exists as to whether the Veteran's present bilateral hearing loss is etiologically linked to his in-service acoustic trauma, the Board finds that service connection should be granted. 38 C.F.R. §§ 3.303, 3.304. B. Tinnitus The Veteran has a present diagnosis of tinnitus per the 2011 VA examination report. As discussed above, the Veteran experienced acoustic trauma during active service. In his VA Form 9 (Appeal to the Board of Veterans' Appeals), the Veteran stated "the ringing in my ears has occurred from the time I was in the military, and has gotten worse over the years as my hearing loss has increased." See VA 9 Appeal to Board of Appeals, 12/11/2012. As discussed above, service connection may be granted for disability resulting from disease or injury incurred in active military service. 38 C.F.R. §§ 3.303, 3.304. A veteran is competent to testify that he experienced an audible sound in his ears in service, and that he has experienced this sound in his ears since that time. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The Veteran is competent to testify to the continuity of his ringing in the ears since his discharge from service. Here, the Board also recognizes that the August 2011 VA examiner directly linked the Veteran's tinnitus to his now service-connected hearing loss. Here, the Board notes that medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of a co-existing hearing loss. See, e.g., HARRISON'S PRINCIPLES OF INTERNAL MEDICINE 182 (16th ed. 2005). Further, tinnitus may occur as the symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See THE MERCK MANUAL § 7, Ch. 82 (18th ed. 2006); see also VA Training Letter 10-02 (Mar. 18, 2010) (stating, among other things, that sensorineural hearing loss is the most common cause of tinnitus). Under the particular circumstances presented here, given that the Veteran has reported tinnitus during active service and testified as to a history of symptomatology since that time, the Board is persuaded that the Veteran's tinnitus can as likely as not be attributed to either the same etiology as his service-connected hearing loss, particularly, his exposure to noise during active service. In the alternative, the Board finds that the Veteran's tinnitus is at least as likely directly related to his service-connected hearing loss, as opined by the VA examiner in his August 2011 examination report. Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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