Citation Nr: 1753546 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-35 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss 2. Entitlement to service connection for tinnitus REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Natasha N. Pendleton, Associate Counsel INTRODUCTION The Veteran has active duty service in the U.S. Air Force from October 1966 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge at a Travel Board Hearing in Oakland, California. A transcript of the hearing is associated with the claims file. (Hearing Transcript). The Veteran's representative requested to supplement the record post-hearing, which was granted. However, no additional information was received. As such, the undersigned finds the record is complete. The matter properly returns to the Board for adjudication. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss is etiologically related to service. 2. Tinnitus is etiologically related to service. CONCLUSION OF LAW 1. The criteria for sensorineural bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he developed bilateral sensorineural hearing loss and tinnitus is a result of his service. At the hearing, the Veteran testified he worked as an aircraft mechanic in a flight line with no hearing protection. He first noticed ringing in his ears and hearing loss while in service. Post- service, he asserts he worked position that either did not require noise exposure or that he utilized hearing protection when required. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic conditions, including sensorineural hearing loss and tinnitus, will be presumed to have incurred in service if they manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1137 C.F.R. §§ 3.309(a-b) and 3.307(a)(2-3) and 3.307(a)(6) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an alternative to the nexus requirement, service connection for a chronic disability may be established through a showing of continuity of symptomatology. 38 C.F.R. § 3.303(b). Finally, the standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Upon review of the record, the Board finds that the evidence of record is in at least equipoise; service connection is warranted for both claims. A. Bilateral Sensorineural Hearing Loss With respect to element (1), a current disability, impaired hearing will be considered to be a disability when auditory thresholds 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 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 Court has held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss - even if not sufficient hearing loss to be considered an actual ratable disability according to § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the criteria has been met has been met. The Veteran was afforded a VA in examination in January 2010 where audiometry testing confirmed the Veteran has a current diagnosis of hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 45 55 LEFT 15 20 20 55 60 Maryland CNC test speech recognition scores 86 percent in the right ear and 84 percent in the left ear. The examiner diagnosed the Veteran with moderate to severe bilateral sensorineural hearing loss. As pure tone threshold and speech recognition scores are consistent with hearing loss for VA purposes, element (1) is met. With respect to element (2), an in-service event, the Veteran testified that he was exposed to noise while working as an aircraft mechanic without hearing protection in a direct flight line. He testified that he first noticed his hearing loss while in service. In fact annual audiological testing indicates the Veteran sustained some level of hearing loss while on active duty. During a September 1966 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) -5 (5) 0 (10) / 10 (15) LEFT 15 (30) 0 (10) 5 (15) / 0 (5) (See August 2014 STRs-Medical pg. 9). The Board notes that the pure tone thresholds indicated by a "/" indicate unavailable results. Additionally, prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). As the Veteran's enlistment examination occurred prior to November 1967, it is presumed ASA was employed. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. Since VA evaluates current hearing loss in ISO-ANSI standards, the units have been converted to ISO-ANSI standards, noted above in parentheses. In June 1969, the Veteran underwent a second audiogram, where pure tone threshold levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 15 LEFT 15 15 15 20 20 Similarly, he underwent a third audiogram in June 1970 where pure tone thresholds levels, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 20 20 LEFT 25 20 20 20 20 Finally, at his September 1970 separation examination, audiogram results indicated pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 10 15 15 LEFT 30 20 15 15 15 While not rising to the level of a ratable hearing loss disability, the Veteran nonetheless sustained some degree of hearing loss. Hensley, 5 Vet. App. At 155, 159. Most importantly, the examinations indicate that he utilized hearing protection; yet, results indicate that he still sustained hearing loss. Given the Veteran's credible testimony that the sustained hearing loss as a result of his MOS, in combination with the objective medical evidence indicating the Veteran sustained some degree of hearing loss, the Board finds element (2) has been met. Concerning element (3), a nexus has been established. The Veteran submitted lay statements from his brother and his wife. In a letter dated September 20, 2017, his brother attested that he believed the hearing loss commenced while his brother was in the military and the job he performed as an aircraft mechanic on jets. He admits he has no way of validating this assessment, but asserts "the truth is the truth." The Veteran had no noticeable issues related to his hearing. But immediately, upon return, it was noticed that his hearing was impaired. When speaking to the Veteran, he had to make other efforts to get his attention. He noticed that his progressed as his brother aged. In a companion letter, the Veteran's wife noted that she did not meet the Veteran until years after he was discharged, June 1974. However, she noticed that his hearing was impaired. On the contrary, the January 2010 VA examiner opined the Veteran's hearing loss is not related to service reasoning the Veteran's hearing loss is primarily due to post-military noise exposure. Yet, he also stated that the results of the hearing evaluation are consistent to high intensity sounds in the following situations while serving in the military: aircraft mechanic (cargo). "The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. It appears that the medical examiner impermissibly ignored the appellant's lay assertions that he utilized ear protection for any job post-service that required noise exposure. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (citing Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006)(noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that VA medical examiner's conclusions were of "questionable probative value" because examiner failed to consider certain information)." At the hearing, the Veteran asserted the position he remained in for 29 years had no noise exposure and did not require ear protection. While there were certain areas of the facility that required ear protection he worked as the storage yard foreman, primarily outside, and not in those specialized areas. The other two positions he listed at the VA examination had no known noise exposure. The examiner's failure to account for these lay statements in his assessment makes his opinion internally inconsistent. For this reason, the lay statements of record must be afforded greater weight. Accordingly, the Board finds the evidence, to be at least in relative equipoise in showing the Veteran's current hearing loss condition is the result of military service. After applying the benefit of the doubt doctrine, the claim must be granted. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. B. Tinnitus Concerning the first element for service connection, the criteria have been met. The Veteran has asserted having a long history of ringing of in his ears. At the January 2010 VA examination, he complained of ear pain/discomfort, exposure to loud sounds, and fullness/plugged sensation. The Board finds the Veteran's lay statements to be highly credible due to his consistency throughout the record. The second element for service connection, in-service occurrence, is also met. The Court has held that a Veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation." Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). At the hearing, the Veteran provided testimony, consistent with the circumstances, conditions and hardships of such service. Specifically, he provided that he worked as an aircraft mechanic on jets in the direct flight line for three and a half years. The Veteran's DD 214 confirms his military occupational specialty was in fact that of an aircraft mechanic. He testified that he first noticed ringing in his ears and hearing loss while in service. Given his consistency, the Board finds Veteran's tinnitus likely occurred in-service. Thus, element (2) is met. As for element (3), nexus, the criteria has also been met. In the aforementioned January 2010 examination, the examiner opined that the Veteran's tinnitus is not likely due to or aggravated by events encountered during his military service. He attributed the Veteran's tinnitus to be secondary to the Veteran's hearing loss, incurred post-military. Given that the Veteran's hearing loss has been found to be service-connected above, this opinion is of little probative value. Moreover, in the September 2017 letters by Veteran's brother and wife, they both affirmed that the Veteran has commented on experiencing ringing, popping and whistling noises in his ears. (See October 2017 Correspondence). In weighing the inconsistent medical opinion of the VA examiner against that of the consistent lay statements of the Veteran and his family, the Board finds the Veteran's claim to be persuasive. The Board finds the evidence, to be at least in relative equipoise in showing the Veteran's current tinnitus condition is the result of military service. After applying the benefit of the doubt doctrine, the claim must be granted. 38 U.S.C. §5107(b); 38 C.F.R. § 3.102. ORDER 1. Entitlement to service connection for bilateral sensorineural hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. ____________________________________________ MATTHEW TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs