Citation Nr: 1718656 Decision Date: 05/26/17 Archive Date: 06/05/17 DOCKET NO. 14-12 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office 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 The Veteran and his spouse ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1961 to December 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The Veteran testified at a Travel Board hearing in November 2016 and the transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2016). 38 U.S.C.A. § 7107 (a)(2) (West 2014). FINDINGS OF FACT 1 A bilateral hearing loss disability is related to service. 2. Tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Given the favorable outcome regarding the claims of service connection for bilateral hearing loss and tinnitus - a full grant of the claims - further explanation of how VA has fulfilled the duties to notify and assist is not necessary. Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss and tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability. A July 2011 VA audiological examination notes that the Veteran has bilateral hearing loss that is considered disabling for VA purposes. 38 C.F.R. § 3.385. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Further, the Veteran has stated that during his service he was exposed to significant levels of noise. Specifically, he has argued that his occupational specialty as a helicopter pilot and instructor at a major naval aviation base consistently exposed him to turbine and piston engine noise from military airplanes and helicopters. Further, there is no evidence that the Veteran's statements concerning noise exposure are not credible. As such, noise exposure in service has been shown. See 38 C.F.R. § 1154(a) (2016). As noted in the statement of the case, the Veteran served as a helicopter pilot and noise exposure during service is conceded. When asked during a November 2016 hearing, "do you believe that your hearing loss began in service," the Veteran responded, "I believe it was as a result of my service". The Veteran went on to testify that he had symptoms of tinnitus in service, described as ringing or the sound of crickets. He also testified that while still in the military he had trouble hearing voices on the radio. He indicated that after service he did about 200 to 250 hours of crop dusting in a helicopter and that he wore hearing protection during that time. The Veteran had in-service audiological evaluations in April 1961, November 1965, and July 1961, at which time auditory thresholds were recorded. Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966 VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: add 15 dB to 250 and 500 Hz, 10 db to 1000, 2000, and 3000, 6000 and 8000 Hz, and 5 db at 4000 Hz. The service treatment record include an April 1961 entrance examination which included audiometric testing which showed puretone thresholds at the test frequencies of 250, 500, 1000, 2000, 4000, and 8000 Hertz, as converted to ISO units, were 20, 20, 10, 10, 5, and 15 in the right ear and 15, 20, 5, 5, 35, and 25 in the left ear. Audiometric testing in July 1961 showed puretone thresholds at the test frequencies of 250, 500, 1000, 2000, 4000, and 8000 Hertz, as converted to ISO units, were 10, 20, 15, 10, 10 and in the right ear and 10, 25, 5, 10, 30 and 5 in the left ear. Audiometric testing in November 1965 showed puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, 4000, and 6000 Hertz, as converted to ISO units, were 10, 0, 5, 10, 10, and 15 and in the right ear and 10, 0, 20, 5, 15 and 25 in the left ear. The Veteran was provided with a VA examination in July 2011. The examiner indicated that based on a review of the Veteran's claims file it was less likely than not that the current bilateral hearing loss disability was causally related to service. The Veteran's hearing was noted to be within normal limits during his entire period of military service from May 1961 to December 1965, and the Veteran specifically denied any current or past hearing loss on his 1965 separation report of medical history. The examiner indicated that it was less likely than not that the Veteran's tinnitus was causally related to his active service, noting that while the Veteran reported tinnitus had begun "20 to 25 years ago," he also expressly denied any current or prior ear trouble on his separation from service in 1965. The Veteran provided a November 2016 statement from a private physician who specialized in otolaryngology, Dr. J. O., who stated that the Veteran's hearing loss and tinnitus were most likely caused by or the result of service and remarked that the Veteran "most likely suffered nerve damage hearing loss after noise exposure while serving in the military." The Board finds that resolving any doubt in the favor of the Veteran, that service connection for bilateral hearing loss and tinnitus is warranted. The Veteran has testified that he had symptoms of hearing loss and tinnitus in service. While the Veteran previously had indicated that tinnitus has started 20 to 25 years earlier, at the hearing he testified that he had symptoms of hearing loss and tinnitus in service and since service and the Board finds that this testimony is credible. See Hensley. The medical evidence is at least in equipoise as to whether the Veteran's hearing loss and tinnitus are related to service. The November 2016 medical opinion by Dr. J.O concludes that the Veteran's hearing loss and tinnitus are related to noise exposure in service. The July 2011 VA examiner concluded that hearing loss and tinnitus are not related to service. In light of the Veteran's credible testimony, the conceded noise exposure in service and medical evidence, the Board finds that the evidence is at least in equipoise and that service connection for hearing loss and tinnitus is warranted. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs