Citation Nr: 1751664 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-17 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse, D.B. ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran had active military service from March 1984 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran perfected a timely substantive appeal and the RO certified the matter to the Board in December 2014. FINDINGS OF FACT 1. The probative evidence demonstrates that the Veteran's bilateral hearing loss is related to service. 2. The probative evidence reflects that the Veteran has experienced tinnitus symptoms since service separation. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) are considered a "chronic disease" under 38 C.F.R. § 3.309 (a). Where there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" under 38 C.F.R. § 3.309 (a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran shall be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not so noted, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When considering lay evidence, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Service Connection for Bilateral Hearing Loss For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds 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. The United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The results of the Veteran's December 2011 VA audiological examination reflect right ear puretone thresholds of 40 decibels or greater at 500, 3000, and 4000 hertz, and left ear puretone thresholds of 30 decibels at 500 and 1000 hertz, and 60 decibels at 4000 hertz. Accordingly, the Board finds that the Veteran has a current bilateral hearing disability for VA purposes. The dispositive issue is whether his current hearing loss is related to his military service. The Veteran contends that exposure to noise during service caused his current bilateral hearing loss. The results of the Veteran's December 1983 enlistment audiological examination indicate that the Veteran's hearing was normal at enlistment. See Hensley, 5 Vet. App. at 157. However, service treatment records (STRs) dating from March 1984 through separation from service in March 1993, including a hearing conservation plan dated August 1987, an STR dated November 1987 reflecting a "significant threshold shift" in the Veteran's hearing acuity, and an STR dated February 1988 that notes "possible noise-induced hearing loss," show that the Veteran's hearing acuity deteriorated during service. At discharge in March 1993, the Veteran's hearing acuity was notably worse than at enlistment, but it did not rise to the level of hearing loss for VA purposes. The Veteran's DD Forms 214 for the service periods March 1983 to March 1993 reflect that he served in the United States Navy, with military occupational specialties (MOS) of "Machinist's Mate," and "Steam Propulsion Maintenance Supervisor." During a hearing before the undersigned Veterans Law Judge in July 2017, the Veteran testified that he was routinely exposed to shipboard noise in the engineering sections of the vessel as well as his berth. Hearing Transcript at 3. The Veteran also testified that he was not provided hearing protection while onboard ship. Hearing Transcript at 10. Considering the nature of the Veteran's military service and his MOS of Machinist's Mate and Steam Propulsion Maintenance Supervisor, the Veteran's accounts of his duties in service and exposure to acoustic trauma are consistent with the circumstances, conditions, and hardships of his service and are, therefore, competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during military service. In an April 2014 letter from the Veteran's treating physician, Doctor B. recognized that the Veteran had chronic ear infections as a child, but concluded that the childhood illnesses are "mainly unrelated to the majority of his problems." In a letter dated August 2017, having observed that the Veteran was exposed onboard ship during military service to noise from turbine engines, boilers, and blowers, Doctor B. opined that the Veteran's hearing loss was likely caused by noise exposure during service. Considering the competent evidence of record that reflects that the Veteran had normal hearing upon enlistment, and that he developed hearing loss in service while exposed to acoustic trauma aboard ship, the Board finds Doctor B.'s nexus opinion competent, credible, and persuasive, and accords the opinion significant weight. In a VA examination report dated December 2011, the examiner opined that the Veteran's hearing loss clearly and unmistakably preexisted military service and was clearly and unmistakably not aggravated beyond its natural progression by the Veteran's service. The examiner cited the Veteran's childhood ear infections and the December 1983 enlistment audiometric test results that reflected a right ear hearing loss threshold of 30 decibels at 6000 hertz. As discussed above, however, the upper limit of puretone thresholds for VA purposes is 4000 hertz. Moreover, the examiner's opinion is grounded in two incompatible legal standards. Although the examiner checked the box in the examination form to select the 'clear and unmistakable' standard, the examiner opined that the Veteran's hearing loss was not proximately caused by military service. See December 12, 2011 VA Medical Opinion at 5. As such, the medical opinion section of the December 2011 VA examination report is internally inconsistent and accorded little probative weight, and the Board finds that the presumption of soundness has not been rebutted in regard to the Veteran's hearing loss. 38 U.S.C. § 1111, 38 C.F.R. § 3.304. Based on this body of evidence, the Board finds that the probative evidence of record, specifically the 2014 letter from Doctor B establishes a nexus between the Veteran's current bilateral hearing loss and his service, and that entitlement to service connection is therefore warranted. Entitlement to Service Connection for Tinnitus The Veteran also contends that he has tinnitus related to his acoustic trauma during active service. A veteran is competent to report matters within his or her own personal knowledge such as experiencing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears which is capable of lay observation); See Barr, 21 Vet. App. at 308-09. As discussed above, lay evidence may establish a diagnosis of a simple medical condition. Jandreau, 492 F.3d at 1377. Because the Veteran is competent to report that he currently has tinnitus, the Board finds that the Veteran has a current disability of recurrent tinnitus. Again, the record reflects that the Veteran's MOS included Machinist's Mate and Steam Propulsion Maintenance Supervisor. The Veteran has testified that he was exposed to continuous acoustic trauma aboard ship, which the Board has found both competent and credible. The Veteran further testified that he started hearing ringing in his ears at about the same time he started experiencing hearing loss in service. Hearing Transcript at 14. Additionally, such noise exposure is consistent with the circumstances, conditions, and hardships of the Veteran's service. The Veteran has specifically reported that tinnitus began during service and that he has experienced it ever since. Resolving all doubt in his favor, and in light of the above, the Board finds the following evidence should be afforded the greatest amount of weight: (1) the Veteran's medical evidence of current tinnitus, (2) his exposure to in-service acoustic trauma, (3) the lack of any evidence of an intervening event, and (4) his competent and credible history of relevant symptoms service discharge. Given the absence of any intervening injury, the evidence tends to show that the current tinnitus is at least as likely as not caused by the acoustic trauma he suffered in service. Although a lay person (including a lay adjudicator) is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay veteran and the lay adjudicator to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of the symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (noting that "any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion"). Resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of tinnitus have been continuous since service separation so as to meet the criteria for presumptive connection for tinnitus based on "continuous" post-service symptoms. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. Because the Board is granting the Veteran's claim for service connection for tinnitus on a presumptive theory of entitlement under 3.303(b) (continuous post-service symptoms), the Board does not reach the additional presumptive theories of chronic symptoms in service under 38 C.F.R. § 3.303 (b), presumptive service connection for tinnitus manifesting to 10 percent within one year of service separation under 38 C.F.R. § 3.307, or the theory of direct service connection under 38 C.F.R. § 3.303 (d). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for recurrent tinnitus is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs