Citation Nr: 1751886	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-42 512	)	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


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran served on active duty from April 1951 to April 1955. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran submitted a Notice of Disagreement in October 2011; a Statement of the Case was issued in October 2014; and a VA Form 9 was received in October 2014.  

The Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing in February 2017; a transcript is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. Resolving all reasonable doubt in his favor, the Veteran likely has bilateral hearing loss that is attributable to his active military service.

2. Resolving all reasonable doubt in his favor, the Veteran likely has tinnitus that is attributable to his active military service. 


CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.385 (2017).

2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a)(2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service Connection - Applicable Law and Regulations

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

Generally, to establish service connection, the evidence 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, such as sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). 

Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Sensorineural hearing loss and tinnitus are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology for this disease is applicable in the present case.

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d) (2017).

Analysis 

The Veteran seeks service connection for bilateral hearing loss and tinnitus.  For the reasons that follow, the Board finds that service connection is warranted.

As an initial matter, the medical record establishes a current tinnitus diagnosis and a bilateral hearing loss diagnosis that meets the requirements set forth under 38 C.F.R. § 3.385. See February 2011 VA Audiological Examination Report. 

With respect to in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) have been deemed unavailable for review. See February 2011 Formal Finding on the Unavailability of STRs.  However, the available personnel records and DD Form 214 confirm that the Veteran was attached to the 15th Fighter Interceptor Squadron in the Air Force and that his military occupational specialty (MOS) was that of an Aircraft Hydraulic Mechanic.  The RO has already conceded acoustic trauma based on this MOS. See March 2011 Rating Decision.  

Moreover, during his hearing and in other statements of record, the Veteran explained at length how he was exposed to excessive acoustic trauma in the course of his duties as an Aircraft Hydraulic Mechanic.  The Veteran is competent to report on such matters and the Board has no reason to doubt the credibility of his statements as they have been consistently reported throughout the record.  

Accordingly, exposure to in-service acoustic trauma is conceded.  

The remaining question for consideration here is whether the currently diagnosed tinnitus and bilateral hearing loss is related to the acoustic trauma sustained during service.  

In this case, there are no probative medical nexus opinions of record.  Indeed, the February 2011 VA audiological examiner was unable to provide an etiology opinion without resorting to mere speculation, in part, due to the paucity of service medical evidence (e.g., the absence of STRs, in-service audiograms, etc.).  As this opinion is inconclusive, it is of no probative value. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). 

Although the record lacks a medical nexus opinion, the Veteran may still establish the third Shedden element through a demonstration of continuity of symptomatology.  

Briefly, post-service treatment records reflect that the Veteran endorsed a history of hearing loss and tinnitus during an initial VA outpatient treatment visit in 2001.  During his Board hearing, he reported that he obtained hearing aids as early as the 1990's.  

In his October 2010 claim for service connection, the Veteran reported that he repaired engines on B-29's, SA 16's, and F-86 fighter jets and performed ground testing of pressurization systems all with little to no hearing protection.  

In an October 2010 statement, the Veteran reported that he participated in F-86 fighter jet engine testing which entailed the crew chief winding up the engines to 100 percent and then putting the engines into an afterburner.  The Veteran stated that he was assigned as a "fire guard" during these tests and that he would cup his hands over his ears as a result of the high pitched noise of the intake and the roar of the exhaust.  He stood approximately 30 feet from the front and side of the aircraft.  He reported that he had ringing in his ears constantly since the time of discharge and that his hearing started to worsen thereafter.  He stated that he never went to VA for treatment because the Air Force did not have a record of his hearing problems.  

In a December 2010 VA audio consult note, the Veteran reported having tinnitus since the time of his discharge from service in 1955.  A positive history of military aircraft noise exposure was noted.  There was a negative history of recreational and post-military occupational noise exposure. 

In his October 2011 NOD, the Veteran again denied any post-service noise exposure; he stated that there was no mention of his hearing loss/tinnitus within one year of separation because he did not recognize the symptoms at that time. 

In his October 2014 VA Form 9, the Veteran stated that his duties as an F-86 Fighter Interceptor Jet Mechanic included acting as a Fire Guard (i.e., where the engines were run up to 100 percent capacity); he stated that he was only afforded rubber earplugs and that he had to cover his ears with both hands "in the hope of keeping my ears from hurting from the extreme noise."  

Lastly, during his February 2017 Board hearing, the Veteran's representative explained that the Veteran had no post-service occupational noise exposure in his position with Lockheed; that he has had gradual hearing loss and tinnitus since service; and that he has had 4 sets of hearing aids through VA since 1993.  The Veteran himself confirmed that he has experienced ear symptomatology, to include ringing in the ears and gradual hearing loss, since and proximate to service.  The Veteran again explained that he was exposed to extreme noise when acting as a Fire Guard and testing the engines 3 to 4 hours per week.  He reported that he complained about the noise to his sergeant and that he had to cover his ears with his hands to protect himself from the aircraft engine noise. 

In considering the above lay evidence, the Board finds that the Veteran is competent to report that was exposed to acoustic trauma without adequate hearing protection in-service; that he has experienced near-continuous ringing in his ears and gradual hearing loss proximate to, and/or since service; and that he has had no other significant exposure to acoustic trauma outside of his duties as an aircraft mechanic in the Air Force. 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (discussing the competency of lay evidence in the context of the disease tinnitus).  

The Board also finds the Veteran's statements and testimony as to onset and continuity of audiological symptomatology to be highly credible.  Indeed, his statements are facially plausible and they have been consistent with each other, his service records, his MOS, and post-service treatment records.  As such, the Board has no reason to doubt the veracity of his statements in this regard.  

Therefore, considering the totality of the evidence, to include the current hearing loss and tinnitus diagnoses and the Veteran's probative lay statements, the Board finds that the evidence is at least in equipoise on the question of a nexus, based on continuity of symptomatology, between service and the current bilateral hearing loss and tinnitus.  Resolving reasonable doubt in the Veteran's favor, the claims of service connection for bilateral hearing loss and tinnitus are granted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.303(b). 


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted. 



____________________________________________
DEBORAH W. SINGLETON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs