Citation Nr: 1761083 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 16-11 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1951 to December 1955 and April 1958 to April 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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). FINDINGS OF FACT 1. Bilateral hearing loss is etiologically related to an in-service injury, event, or disease. 2. The evidence is in equipoise as to whether the Veteran's tinnitus was incurred during 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, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of in-service exposure to hazardous noise, including work as an Aircraft Crash and Salvage Officer and service on the USS Independence in September 1970 to October 1970 as the Launching and Recovery Officer. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss and tinnitus, as organic diseases of the nervous system, are subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these 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 Veteran was diagnosed with bilateral hearing loss disability for VA purposes and tinnitus in a December 2014 examination. Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran is competent to state that he has tinnitus and the Board finds his statement to be credible. The question for the Board is whether the Veteran's bilateral hearing loss or tinnitus either began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that that Veteran's bilateral hearing loss is etiologically related to the Veteran's active service. Further, the evidence is in relative equipoise that the Veteran's tinnitus is etiologically related to the Veteran's active service. On the June 2014 Application for Disability Compensation and Benefits, the Veteran indicated he has had bilateral hearing loss and tinnitus since service. The Veteran's service personnel records indicate that his military occupational specialty (MOS) was as an Aircraft Crash and Salvage officer and he served as a Launching and Recovery officer, spending a majority of his time working around operating aircraft. The December 2014 VA examination report also indicates the Veteran served over 20 years and was around aircraft while wearing hearing protection. The Board finds that the Veteran experienced an in-service injury, specifically exposure to hazardous noise, namely operating aircraft. The Board finds the Veteran's reports of exposure to hazardous noise due to his MOS, and constant exposure to aircraft noise, to be competent and credible. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). The Veteran's DD Form 214 reflects that he served during the Vietnam war era and military personnel records reflect that he served on the USS Independence (CVA 62) from September 1970 to October 1970, wherein the Veteran served as the Launching and Recovery Officer while the USS Independence aircraft flew a high number of sorties in high-alert operations in the Mediterranean Sea/Lebanon. The Veteran's DD Form 214 also reflects that he received the Bronze Star, Navy Commendation Medal (USS Independence), and the Meritorious Unit Award (USS Independence). The Veteran's description of in-service noise exposure is consistent with the known circumstances of his military service. The Veteran has asserted that he has had continuous symptoms of bilateral hearing loss and tinnitus since service. The Board finds the Veteran competent and credible with regard to his claim of experiencing symptoms of bilateral hearing loss and tinnitus in service and continuity of symptoms since service. There is evidence the Veteran had noise exposure in service. His assertion that the bilateral hearing loss and tinnitus began during service is consistent with the circumstances of service. The Board notes that the December 2014 VA examiner noted that the Veteran reported that he had experienced periodic tinnitus for "approximately 3-4 years." In the January 2015 notice of disagreement, submitted by the Veteran's representative, he asserted that the Veteran originally claimed that his tinnitus began in service, and although he stated that he began experiencing tinnitus 3-4 years at the December 2014 VA examination, it is plausible that the Veteran misunderstood the question asked of him or was reporting some additional ear symptoms. The Veteran's representative further argued that, according to The Merck Manual, tinnitus may occur as a symptom of nearly all ear disorders, including sensorineural or noise-induced hearing loss. As the Veteran has been found to have experienced in-service acoustic trauma, the Veteran's representative asserted that according to The Merck Manual, it is likely that if he also experiences tinnitus, it is also due to acoustic trauma. See January 2015 notice of disagreement (citing The Merck Manual of Diagnosis and Therapy, Sec. 7, Ch 82 & 85, Approach to the Patient with Ear Problems). The Board acknowledges that the December 2014 VA examiner found the Veteran's hearing loss and tinnitus were less likely as not caused by noise exposure during his military service. However, the VA examiner's rationale was inadequate. The VA examiner stated that the Veteran was exposed to aircraft while wearing hearing protection and that his hearing was assessed on multiple occasions, and his discharge hearing test revealed normal hearing, and the "data did not support a claim for hearing loss." In regards to tinnitus, the VA examiner opined that the Veteran's normal hearing at discharge and recent onset of tinnitus indicates that tinnitus is not related to military noise exposure. The VA examiner did not address the Veteran's competent and credible lay statements that he has had symptoms of hearing loss and tinnitus since service, to include consistent exposure to operating aircraft. As the rationale is inadequate, the December 2014 VA opinion has little probative value. There are no other medical opinions of record. In sum, the Veteran has been diagnosed with bilateral hearing loss and tinnitus, and was exposed to hazardous noise in service. The Board finds the Veteran's statements that he has been experiencing hearing loss since his discharge from service to be competent and credible. Therefore, they have significant probative value. In regards to tinnitus, the Board places equal weight of probative value on the June 2014 statement by the Veteran that he has been experiencing tinnitus continuously since discharge from service and the assertion by the Veteran in December 2014 that he has experienced tinnitus for 3-4 years. Therefore, as the record contains assertions both for and against the continuity of symptomatology for the Veteran's claim of tinnitus, the Board finds that the evidence of record is in equipoise as to whether the Veteran has experienced tinnitus since service. In such cases, all reasonable doubt is resolved in favor of the Veteran. Therefore, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs