Citation Nr: 1761072 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 15-16 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to October 1963 and in the Coast Guard from September 1987 to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the Veteran's claims file is now with the Phoenix, Arizona RO. A video teleconference hearing was held before the undersigned Veterans Law Judge (VLJ) in October 2017. A hearing transcript is of record. Additional evidence was submitted into the record following the April 2015 Statement of the Case. However, the Veteran waived Agency of Original Jurisdiction (AOJ) review in an October 2017 statement. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's current bilateral hearing loss disability and tinnitus had onset during active service or is otherwise related to that service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1132, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1132, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Veteran's claims of entitlement to bilateral hearing loss and tinnitus are being granted herein. Any error related to these duties is moot. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Facts and Analysis The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus on the basis that noise exposure during service caused his present hearing loss and constant ringing in his ears. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In Fountain v. McDonald, 27 Vet. App. 258 (2015) the United States Court of Appeals for Veterans Claims (Court) held that tinnitus, "at a minimum where there is evidence of acoustic trauma," is also a chronic disease under 38 C.F.R. § 3.309(a), "as an 'organic disease[] of the nervous system.'" Generally, to establish service connection, the evidence 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For presumptive chronic diseases, to include sensorineural hearing loss and, now, tinnitus, an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (for tinnitus, a Veteran is competent to present evidence of continuity of symptomatology). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Concerning the first element, existence of a current disability, impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A VA audiometric examination in August 2013 revealed pure tone auditory thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz to be 50, 50, 55, 75 and 90 respectively, in the left ear and 45, 55, 45, 60 and 85 dB, respectively, in the right ear. These findings show that the Veteran meets the criteria for a current hearing loss disability under 38 C.F.R. § 3.385, which the examiner diagnosed as bilateral sensorineural hearing loss. In addition, based on the Veteran's report, the examiner noted tinnitus was present. The first element, existence of present disability, is satisfied. As to the second element, the in-service incurrence, the service treatment records, show the Veteran did not have hearing loss based on VA standards. There was also no mention of ringing in his ears or tinnitus at that time. However, the absence of in-service evidence of a hearing loss disability during service is not fatal to the Veteran's service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The record does include evidence of exposure to excessive noise in service. At the October 2017 Board hearing, the Veteran described noise exposure in the form of his duties while in service in the Navy included an aviation instructional mechanic with a hydraulics rating. Specifically, he worked on various aircraft from reciprocating engines to jets. In this job, he testified he was exposed to heavy noise and was not issued any kind of hearing protection, though at times he would use cotton to stick in his ears for extended periods of time. Additionally, he testified that when aboard ship, he would often be sent to the flight deck to fix an issue with an aircraft. There would be a lot of jet engine noise on the flight deck. While he served in the Coast Guard, he worked as a port security officer. At the October 2017 Board hearing, he testified he was exposed to loud noises from jet skis and the small inflatable boat. Again, he was provided no hearing protection. The Veteran further testified that following his entrance hearing examination for the Coast Guard reserves, he was told his earing was not good. However, he talked them into going ahead and letting him into the Reserves, knowing that he was going to be doing security work which his safety would not be as dependent on his hearing. He testified he believed his hearing worsened during this time. Regarding the ringing in his ears specifically, the Veteran testified that when the ringing began, he was told it was just from the engine noise and that it would go away with time. However, it has not gone away. Lastly, the Veteran testified that he did not have noise exposure outside of the service. Based on the Veteran's military occupational specialties and absent any evidence to the contrary, his in-service noise exposure is conceded. Notwithstanding the conceded in-service noise exposure, the third element, a causal connection between the military noise exposure and the Veteran's present hearing loss and tinnitus must be established. As previously stated, a VA audiological examination was performed in August 2013. On examination, the August 2013 examiner provided a diagnosis of bilateral sensorineural hearing loss and opined it was less likely than not caused by or a result of an event in military service. In support of that opinion, the examiner stated the service treatment records did not support a claim of hearing loss while in the Navy. His October 1963 separation examination showed normal hearing loss in both ears. While the Veteran stated he was aware of hearing loss in the Navy, the first evidence of hearing loss was in August 1987. Evidence was present as to hearing loss when he entered active reserves in the Coast Guard in 1987 but the evidence indicated the Veteran suffered no hearing impairment in either ear while working as an aviation metal smith. Additionally, pertaining to his tinnitus, the examiner found the Veteran's tinnitus is at least as likely as not a symptom associated with the hearing loss. However, despite noting the Veteran claimed tinnitus started in the Navy; the examiner found the tinnitus was associated with the hearing loss. Because the evidence indicated hearing loss occurred after leaving the service, the examiner found the tinnitus also occurred after service. While the examiner addressed the Veteran's contentions that he had hearing loss and tinnitus in the Navy, the examiner does not specifically address the Veteran's specific lay reports of hearing loss and tinnitus following his service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (VA opinion found to be inadequate where examiner ignores lay statements). Moreover, despite no documentation of hearing loss or tinnitus in the service treatment records, the examiner failed to provide reasoning as to whether either are causally related to an injury in service. See Henlsey v. Brown, 5 Vet. App. 155 (1993). As such, the nexus opinion provided is of little probative value. The record includes a private audiometric examination in August 2010. At that time, the Veteran was diagnosed with bilateral high frequency sensor-neural hearing loss with a mild to moderate speech-in noise test. Additionally, an October 2017 private examination revealed pure tone auditory thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz to be 25, 25, 30, 60, and 85 dB, respectively, in the left ear and 25, 25, 30, 55, and 85 dB, respectively, in the right ear. No medical opinion was provided along with both audiometric examinations. Several buddy statements in support of the Veteran's claims were received in the record. In January 2014, the Veteran's daughter, D.F., reported ever since she could remember, the Veteran had problems with his hearing. The television always had to be turned up loud so he could hear it and they would have to raise their voices and repeat themselves so he could hear clearly. Moreover, she indicated the Veteran complained of ringing in his ears which she believed was caused by his time in the Navy at Kitty Hawk. The Veteran's wife from 1960 to 1971, J.P., submitted a statement dated February 2014 which recalled numerous occasions in which the Veteran complained of ringing in his ears. She indicated that, at the time, they felt it had something to do with his service in the Naval Air when he was exposed to engine aircraft noise both on land and sea. The Veteran submitted a statement which was received in July 2014. In the statement, the Veteran reported noise exposure in service while working on jet aircraft. He also reported he was not issued hearing protection. When he began experiencing ringing in his ears, he was told by supervisors and other aircraft mechanics that he would get used to the ringing in his ears and it would go away. Additionally, he indicated that upon discharge, he did not complain about ringing in his ears because he had gotten used to the noise. He also indicated nothing could have been done about the ringing even if he had told them. Moreover, he stated his discharge physical was not much of a physical and was not completed by a doctor; instead it was done by a medic. Despite his lack of complaints about the ringing in his ears, he reported it has continued to worsen. Another statement received in July 2014 from the Veteran's wife, A.L., from June 1972 to September 1995 reported the Veteran complained of not hearing the television unless it was turned up loud. Additionally, A.L. indicated the Veteran could not hear her when she spoke in a normal tone. However, she did not know the Veteran during his military service and could not comment on those years. Finding the August 2013 VA examiner's opinion is inadequate as it lacked sufficient rationale to support the opinions provided, the Board is left with evidence consisting of the Veteran's competent and credible accounts of in-service noise exposure. Considering the remaining evidence, the Board finds that the evidence is at least in equipoise as to whether his hearing loss is related to service, and thus, giving the benefit of the doubt to the Veteran, finds that the nexus element for the hearing loss claim is met. Consequently, because the Veteran has reported ringing in his ears which he contends was caused by his service, the Board finds the Veteran's tinnitus, based on his competent and credible accounts of continued ringing in his ears is also related to his service. See 38 C.F.R. § 3.303(b), Charles v. Principi, 16 Vet. App. 370, 374-75 (2002), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As all three elements are met for the hearing loss and tinnitus disability claim, the appeal must be granted as to entitlement to service connection for bilateral hearing loss and tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus, to include as secondary to bilateral hearing loss is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs