Citation Nr: 1752926 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-32 815 ) 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 Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The competent and credible evidence of record is in equipoise as to whether currently diagnosed bilateral hearing loss disability was incurred during active service. 2. The competent and credible evidence of record is in equipoise as to whether currently diagnosed tinnitus was incurred during active service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, bilateral hearing loss disability was incurred during active duty. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. Resolving doubt in favor of the Veteran, tinnitus was incurred during active duty. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (West 2013); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). To establish a service connection for a disability, 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 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2015). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). At the June 1966 service pre-induction examination, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 -5 -- 0 LEFT 5 10 -5 -- -5 At the October 1970 service separation examination, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 10 LEFT 5 5 5 5 10 An August 2010 VA audiology record shows that the Veteran had a constant bilateral ringing sound which started during service. The Veteran also had a mild to moderate hearing loss. On VA examination in July 2011, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 20 50 LEFT 5 5 15 45 50 Speech discrimination scores were 98 percent for the right ear and 96 percent for the left ear. The examiner indicated that the Veteran had hearing loss, and his tinnitus was as likely as not a symptom associated with the hearing loss. The examiner noted that the Veteran had normal hearing on entrance and separation from service with no pattern of threshold changes that indicated a discernable noise "notch." The examiner noted that the Veteran had a positive history of service noise exposure and post-service noise exposure through his occupation in telephone installation. Additionally, the Veteran enjoyed hunting. Because of the normal hearing at the time of the separation from service and the absence of a record of chronicity in the medical record, the examiner opined that the Veteran's hearing loss and tinnitus were not related to service noise exposure. The Veteran submitted an uninterpreted graphic audiogram from a private audiologist in October 2011. The audiologist remarked that audiometric testing revealed a moderate precipitously sloping high-frequency sensorineural hearing loss. It was the audiologist's professional medical opinion that the jet noise and machine-gun firing the Veteran experienced on active duty resulted in the hearing loss and tinnitus that the Veteran experienced today. The audiologist specified that the configuration of the Veteran's hearing loss was consistent with noise trauma. As an initial matter, the July 2011 VA audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes, as he demonstrated an auditory threshold of 50 decibels for the right ear and 50 decibels for the left ear at 4000 Hertz. 38 C.F.R. § 3.385 (2017). The July 2011 VA examination also provides a diagnosis of tinnitus. Therefore, the question to be decided in the present appeal is whether that hearing loss and tinnitus are associated with the Veteran's active duty. With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma through exposure to gunfire. Significantly, the Veteran's service personnel records show that the Veteran was a helicopter crewman. Additionally, he was awarded the Combat Action Ribbon. Based on that evidence, the circumstances of the Veteran's service would have exposed him to acoustic trauma during service. Thus, the Board finds that he likely experienced acoustic trauma during service. With respect to whether there is a nexus or relationship between the current tinnitus and bilateral hearing loss disability and service, the Board acknowledges that the July 2011 VA examiner opined that it was less likely as not that the claimed hearing loss and tinnitus were related to service, due to the Veteran having normal hearing at separation. However, minimal reasoning was given to support that opinion. Therefore, although the VA examiner is competent and credible to provide the given opinion, the opinion is assigned little probative weight. It is important to note that the Board may not rely on a medical opinion that rejects a Veteran's lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing as that comes to him through his senses and requires only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. The Veteran is competent to describe his in-service noise exposure and current difficulty hearing and ringing in his ears, and the Board finds that his assertions are credible. Additionally, the October 2011 private audiologist associated the Veteran's diagnosed bilateral hearing loss and tinnitus with acoustic trauma experienced during active duty. After a review of the evidence of record as a whole, and in light of the foregoing, the Board finds that the current bilateral hearing loss disability and tinnitus cannot be disassociated from his in-service exposure to acoustic trauma. Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107 (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a 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