Citation Nr: 1756822 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-15 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty service with the United States Army from February 1971 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of the Portland, Oregon Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran testified before the undersigned Veterans Law Judge in December 2016. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. Bilateral hearing loss is attributable to service. 2. Tinnitus is attributable to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306, 3.385 (2017). 2. Tinnitus was incurred in service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his service connection claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary. II. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, for certain diseases designated as chronic, medical nexus may be presumed under certain circumstances. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). For hearing loss claims, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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). However, assuming the Veteran has impaired hearing within the meaning of 38 C.F.R. § 3.385, even if the Veteran's hearing is found to have been within normal limits upon separation from service, this does not in and of itself preclude entitlement to service connection. Id. at 159; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Finally, organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, are considered chronic diseases within the parameters of 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015); VA M-21-1 Adjudication Procedure Manual, Part III., subpart iv., ch. 4, sec. B.2.c. Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the Veteran's December 2016 Board hearing he reported onset of tinnitus during active duty service and difficulty hearing since separation from active duty service. He explained that he was exposed to noise exposure as part of his duties working with artillery and missiles; this description is consistent with the Veteran's personnel records which indicate that his military occupational specialty was missile crewman. He also reported that while he had always noticed the tinnitus symptoms, which he described as a high-pitched hum, it was his wife, whom he started dating shortly after separation from active duty service in 1973, who had also noticed his hearing issues; specifically he reported that she had always complained that she had to repeat herself. This is consistent with the November 2011 lay statement submitted by the Veteran's wife, who also added that the Veteran had always complained of tinnitus symptoms. The Veteran also explained that he was noted to have hearing loss on an audiological examination conducted by his employer in 1991. The Veteran explained that post-service he was a dairy farmer and that then he had worked for 20 years in a paper mill starting in 1991 in which the use of hearing protection was required. He also explained that a June 2011 audiological history note contained in his previous paper mill employer's records was not completed by him, and confirmed that he did have tinnitus symptoms (described by him as a high-pitch hum) at that time. A review of the Veteran's relevant 1991 paper mill employment records indicate that the Veteran exhibited impaired hearing consistent with 38 C.F.R. § 3.385 in 1991 in both ears, and that he did not report ear ringing or roaring in the ears. A VA examination was conducted in March 2012. Although the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus, she provided negative etiology opinions on the basis of the Veteran's normal hearing acuity on his February 1973 separation physical. She also commented that there were no "significant" auditory threshold shifts documented at the higher frequency ranges. With regard to auditory threshold shifts, the Veteran's service treatment records document an auditory threshold of 15 decibels bilaterally prior to induction into active duty service at the 4000 Hz frequency, but document an auditory threshold of 25 decibels bilaterally upon separation from active duty service at the 4000 Hz frequency upon separation from active duty service. Post-service occupational exposure similar to the history provided by the Veteran at his December 2016 hearing was noted as well as the absence of recreational noise exposure without hearing protection. Applying the foregoing to the Veteran's bilateral hearing loss claim, the Board finds that the Veteran has a current diagnosis of bilateral sensorineural hearing loss. As to in-service noise exposure, the Board finds that the Veteran's lay testimony is competent and credible because it is consistent and partially corroborated by his personnel records. Additionally, although contemporaneous medical records documenting an initial diagnosis of hearing loss in service is not present, the Board finds that the Veteran's and his wife's lay statements provide competent and credible lay evidence of continuity of symptoms, and notes that there is some evidence of some degree of hearing loss during active duty service, as well as affirmative evidence of hearing impairment in the absence of post-service occupational or recreational noise exposure without hearing protection. Accordingly, the Board finds that the Veteran must be afforded the benefit of the doubt, and finds that an award of service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). Addressing the Veteran's tinnitus claim, a diagnosis of tinnitus was established by the VA examination conducted in March 2012. With regard to the element of in-service incurrence, as discussed above, the Veteran was exposed to acoustic trauma in service, as detailed by his competent and credible lay statements, and corroborated by his personnel records. As for the Veteran's competency to report onset of tinnitus during active duty service, the Board finds that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Dorland's Illustrated Medical Dictionary, 1930 (32nd ed. 2012) (defining tinnitus as a noise in the ears such as buzzing, ringing, or clicking that is usually subjective in nature). As such, while the Veteran's service treatment records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began in service. 38 C.F.R. § 3.159(a)(2). The Board observes that there is a June 2011 notation in the Veteran's post-service employment paper mill records, in which it is noted by the examiner that the Veteran did not report "ringing" or "roaring" in the ears. However, as discussed above with record to the Veteran's December 2016 Board hearing testimony, the Veteran described his tinnitus symptoms as a high-pitched hum and it is unclear whether he or his previous employer's audiological tester filled out the audiological history report. The Veteran affirmatively stated at his December 2016 Board hearing that he did not fill out the June 2011 audiological history report, and also explained he had always thought of his tinnitus symptoms as a hum for which no course of action was available. As such, the Board finds that the Veteran's testimony with regard to onset of his tinnitus and continuity of symptoms are not lacking in credibility, and in this regard also reiterates that the Veteran's service treatment records document noise exposure and some degree of hearing loss, his post-service employment audiological records are consistent with hearing loss prior to his employment with the paper mill in 1991, the Veteran was required to use hearing protection at the paper mill, and he lacks any other history of occupational or recreational noise exposure without hearing protection. Accordingly, an award of entitlement to service connection for tinnitus is warranted here. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs