Citation Nr: 1761035 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 14-10 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active naval service from August 1961 to April 1965 and active service in the United States Marine Corps (USMC) from January 1975 to January 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran requested a hearing before a member of the Board in his March 2014 substantive appeal and was scheduled for a videoconference hearing in October 2017. However, in an October 2017 statement, the Veteran stated that he was unable to attend the hearing due to severe illness, declined for the hearing to be rescheduled, and withdrew his request for a hearing before the Board. The hearing request is therefore deemed withdrawn. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service. 2. The Veteran's tinnitus is etiologically related to acoustic trauma sustained in active service CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran reports that he has experienced difficulty hearing and understanding people since his release from active service. He described in-service noise exposure due to being constantly around machines, power tools, and construction equipment. In addition, the Veteran stated that he had negligible noise exposure after service, and denied any recreational noise exposure. A review of the Veteran's DD Form 214 shows a military occupational specialty (MOS) of boatswain's mate while in the Navy, and as an aviation supply manager while in the USMC. Both of the Veteran's MOS indicate that he was frequently exposed to loud noises. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of bilateral hearing loss or tinnitus while the Veteran was in active service. In March 1961, at enlistment, and March and April 1965, at separation, the Veteran was afforded examinations. However, no audiometric tests were conducted; rather, the Veteran was given whisper voice tests each time, which revealed no hearing loss or changes throughout service. As whispers voice tests have been found inadequate for purposes of identifying high frequency hearing loss, it cannot be determined with any certainty that the Veteran did not have decreased hearing acuity at the time of his separation from active service. Regardless, the Veteran has stated that he first experienced symptoms of hearing loss during and immediately following active service, and that his symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In this regard, the Board finds the Veteran to be credible in his reports regarding the onset and symptomatology of his hearing loss and tinnitus. On VA examination in September 2012, the Veteran was shown to have bilateral sensorineural hearing loss for VA compensation purposes, as well as tinnitus. See 38 C.F.R. § 3.385. The examiner conceded that the Veteran was likely exposed to acoustic trauma during service, but opined that the Veteran's hearing loss and tinnitus were less likely than not related to noise exposure during service, as the Veteran's STRs at discharge showed normal hearing and had no documented complaints of ringing in his ears during active service. The Board finds that the September 2012 VA opinion is inadequate with regard to the etiology of the Veteran's bilateral hearing loss and tinnitus disabilities. First, the absence of documentation of, treatment for, or complaints of hearing loss during and after service cannot serve as the basis of a negative etiology opinion. In addition, the VA examiner did not adequately consider the Veteran's lay statements regarding onset of symptomatology or, while seemingly conceding heavy noise exposure as a result, failed to address the significance of his MOS. Lastly, the examiner seemingly did not consider the lack of audiometric testing, and accepted the whisper voice test as ipso facto proof of consistent hearing acuity with no fluctuations or decrease. Accordingly, as the VA opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran is competent to identify decreased hearing acuity and ringing in the ears, and the Board finds his statements in this regard are credible. In sum, the Veteran has a current diagnosis of bilateral hearing loss disability for VA compensation purposes, a diagnosis of tinnitus, and the Board concedes that the Veteran sustained acoustic trauma during active service. The Veteran has also competently and credibly reported that he first experienced hearing loss during service and that it has continued since that time. While there are medical opinions of record indicating that the Veteran's current bilateral hearing loss disability and tinnitus are not related to his noise exposure in active service, those opinions are inadequate and therefore of little probative value. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for bilateral hearing loss disability and tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs