Citation Nr: 1751680 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-15 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: North Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from September 1962 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2017, the Veteran testified during a video conference Board hearing before the undersigned Veterans Law Judge and a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during active service. 2. The evidence is in relative equipoise as to whether current bilateral hearing loss and tinnitus are related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in-service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). Bilateral Hearing Loss and Tinnitus Disabilities The Veteran maintains that he has current bilateral hearing loss disability and tinnitus which are the direct result of acoustic trauma and hazardous noise exposure during active service. The Veteran specifically asserts that he developed hearing loss and tinnitus during active service as a result of in-service acoustic trauma and exposure to hazardous noise during the performance of duties working as pilot and a forward air controller, and that those disabilities have continued to worsen since service. The Veteran was diagnosed with bilateral sensorineural hearing loss and bilateral tinnitus at an August 2012 VA examination. The audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes, as the Veteran had bilateral puretone threshold levels at a frequency greater than 26 decibels at three or more frequencies in the 500 to 4000 Hertz range. 38 C.F.R. § 3.385 (2017). 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, 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 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's September 1962 entrance examination shows that he had normal hearing upon entering service. According to the Veteran's service medical records, he was diagnosed in November 1963 with bilateral blocked ears and otitis media with serous fluid in the right ear. At a June 2017 Board hearing, the Veteran testified that while piloting an aircraft and executing a dive he suffered trauma to the ears and nose. A March 1965 service treatment record indicates that after that incident, the Veteran's was treated for blocked sinuses and was grounded for six to seven days. In addition to that traumatic in-service event, the Veteran also testified to experiencing almost constant exposure to hazardous noise as a pilot and as a forward air controller providing close air support. Specifically, the Veteran asserts that he was exposed to hazardous noise as the result of active service within combat zones where ordinance fire was extensive, even near his sleeping areas. The Veteran described specific incidents where snipers used his shoulder to steady their weapons while firing. He also discussed another incident where two 250 pound bombs were dropped near his sleeping area. The Veteran testified that he had progressive hearing loss and ringing in both ears while in service and at discharge. He also stated that his hearing loss continued to worsen through time until he lost complete hearing in the right ear. He indicated that he had been wearing hearing aids since he was approximately 55 years old. The Veteran is competent to report experiencing in-service acoustic trauma and resultant diminished hearing and additional auditory pathology in the form of tinnitus, as hearing loss and tinnitus are conditions with unique and readily identifiable features that are capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Accordingly, the Board finds the Veteran's account of experiencing in-service acoustic trauma and auditory symptomatology to be credible and consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology during and since service. Thus, there is competent and credible lay evidence of record that bilateral hearing loss and tinnitus occurred following acoustic trauma during active service and have continued to progress since that time. The Board acknowledges that an August 2012 Disability Benefits Questionnaire contains a negative etiological opinion. The examiner opined that the Veteran's hearing loss disability was not due to noise exposure during service because there was no hearing decrease at the time of separation and the Veteran experienced sudden onset of hearing loss at age 42. The examiner also opined that the Veteran's tinnitus disability was less likely than not incurred in or caused by an in-service injury, event, or illness. However, the Board assigns less probative value to that opinion, as it did not adequately address the Veteran's lay assertions of onset and continuity of symptomatology, and did not have the opportunity to review the Veteran's hearing testimony regarding experiencing hearing loss after service, but not before. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, while the examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were not due to service noise exposure, the examiner based the negative opinion solely upon the absence of documented hearing loss at separation. Further, while the report indicates that the Veteran's prior medical records were examined, the examiner did not provide an analysis of the Veteran's medical history or lay history. However, regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992). In sum, the Veteran has competently and credibly reported a continuity of symptomatology of bilateral auditory pathology in the form of tinnitus and decreased hearing acuity during and since active service. Charles v. Principi, 16 Vet. App. 370 (2002). That report of a continuity of symptomatology suggests a link between current bilateral hearing loss and tinnitus and active service. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, the Board must resolve all reasonable doubt in favor of the Veteran. Therefore, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs