Citation Nr: 1754469	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-06 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel
INTRODUCTION

The Veteran served on active duty from June 1965 to August 1968.

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 Denver, Colorado.

In July 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to in-service noise exposure.

2.  The evidence is at least evenly balanced as to whether the Veteran's tinnitus had its onset in active service.


CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303.




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to all the issues before the Board, further discussion of the VCAA is not necessary at this time.

Merits

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  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 current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Here, a December 2011 VA audiology examination report reflects that the Veteran was diagnosed with bilateral hearing loss as defined by VA and with tinnitus.  Id.  In addition, the Board notes that tinnitus is capable of lay observation, and the Veteran has offered competent, credible testimony that he experiences tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation").  Thus, the Veteran has met the current disability requirement for both bilateral hearing loss and tinnitus.

Regarding an in-service event, the Veteran reported exposure to noise during service.  In service, the Veteran's military occupational specialty (MOS) was radio mechanic.  The Board has no reason to doubt the Veteran's contention.  Further, the RO has already conceded noise exposure.  See February 2013 Statement of the Case ("The fact that you were exposed to noise in the military has been conceded based on your MOS").  Thus, the remaining questions are whether there is a link between the Veteran's hearing loss and in-service noise exposure and a link between his tinnitus and in-service noise exposure.

Regarding hearing loss, the December 2011 VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to service.  As rationale, the examiner stated that the Veteran had normal hearing at entrance, on examination in May 1966 and upon separation.  The examiner stated that the Veteran had normal hearing throughout military service.

The Board finds this opinion of minimal probative value.  The Veteran has consistently stated that he has experienced decreased hearing since service.  Indeed, in his claim for service connection, the Veteran reported that hearing loss began in 1968.  Further, the Veteran has offered several buddy statements indicating that the Veteran has complained of decreased hearing since service.  The examiner, however, relied solely on normal hearing during service as the basis for his opinion.  As the examiner relied solely on normal hearing during service and did not consider the Veteran's credible and competent assertions of continuity of symptomatology, the Board finds that opinion of minimal probative value.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

On the other hand, the Veteran provided a record from Dr. M.M.  He noted that the Veteran had loud noise exposure from rock concerts and aircraft noise in the Navy.  He further explained that the Veteran did not have regular hearing protection during his period of service.  He then concluded that the Veteran has hearing loss due to both aging and acoustic trauma.  He also explained that the Veteran has bilateral high-frequency significant loss which is indicative of combined acoustic trauma and presbycusis.  Dr. M.M. has related the Veteran's hearing loss, at least in part, to his in-service noise exposure.  While there is rationale is not extensive, it does indicate that the Veteran's hearing loss is at least partly related to his in-service noise exposure.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  Thus, the report is at least of some probative value.

Given the above, the medical evidence is at least of equally probative value regarding whether bilateral hearing loss is related to in-service noise exposure.  Accordingly, the Board concludes that the evidence is at least evenly balanced as to whether the bilateral hearing loss is related to service. 

Regarding tinnitus, the December 2011 VA examiner stated that it was less likely than not that tinnitus was related to service.  As rationale, the examiner stated that the Veteran had normal hearing at separation and there were no complaints of tinnitus during service.  Further, the examiner stated that the Veteran reported that tinnitus began 30 years ago, about 13 years after service.  The examiner stated that if the Veteran has noise-related tinnitus, it will begin immediately upon exposure to noise.

Despite the examiner's statement that the Veteran asserted that tinnitus began 13 years after service, the evidence indicates otherwise.  In his claim for service connection, the Veteran reported that tinnitus began in 1968, during service.  Further, in various written statements, the Veteran has stated that tinnitus began during service.  Finally, the Veteran testified that tinnitus began in service and the December 2011 VA examiner must have misunderstood as the Veteran has consistently stated that tinnitus began during service.  See Board Hearing Tr. at 7-9.  The Board finds the Veteran's statements of tinnitus beginning during service both competent and credible.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"); Charles, 16 Vet. App. at 374 (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). Given that finding, the examiner's erroneous reliance (albeit from a possible misunderstanding) on the belief that tinnitus did not begin until 13 years following service, renders the December 2011 VA examiner's opinion not probative.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value).

As such, the Board finds that the Veteran's competent and credible reports of tinnitus beginning in service are uncontroverted.  Accordingly, the Board concludes that the evidence is at least evenly balanced as to whether the tinnitus first manifested itself during service and continued since service. 

As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus are warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs