Citation Nr: 1800128 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 17-17 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1960 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 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. The Veteran's bilateral hearing loss is the result of active service. 2. The Veteran's tinnitus is the result of his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including sensorineural hearing loss and tinnitus, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Medical diagnosis of hearing loss disability is measured with numerical criteria as defined by pertinent VA regulation. With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 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 from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. §5107(b). A. Bilateral Hearing Loss The Veteran asserts that his current hearing loss is etiologically related to noise exposures in service from various weapons, including.30 and.50 caliber machine guns. See December 2013 Statement in Support of Claim. He states that he has had hearing loss and tinnitus since military service, and that his hearing was tested at the Milwaukee VA Medical Center in the 1970s or 1980s. See October 2014 Notice of Disagreement. In this case, the March 2014 and February 2017 VA examinations show that the Veteran has a current hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385. A review of the record shows that the Veteran had a military occupational specialty (MOS) of automotive mechanic, and the Board has no reason to doubt the veracity of his reports as to weapons noise in service. As such, in-service noise exposure is conceded as consistent with the circumstances of his service. 38 U.S.C. §§ 1154(a). Having determined that the Veteran currently has a diagnosis of bilateral hearing loss and in-service noise exposure, the remaining question before the Board is whether his disability is related to his service. In July 1998, the Veteran presented to the Milwaukee VA Medical Center complaining of hearing loss following a recent head trauma. The audiologist noted a military history including weapons training, and a work history as a trucker. The audiologist reported the puretone results reveal high frequency sensorineural hearing loss, "consistent with [the Veteran's] noise exposure history." The Veteran was afforded a VA examination in March 2014. Following an examination and review of the claims file, the examiner opined it was less likely than not that hearing loss was due to the Veteran's military service. The examiner's rationale was that the first documentation of hearing loss was in 1998, approximately 35 years after discharge from service, with no complaints of hearing loss in unrelated VA examinations following service. The examiner stated it was more likely to be due to post-service noise exposure. The Veteran underwent another VA examination in February 2017. The examiner indicated that the Veteran had normal hearing during his enlistment examination in October 1960, and that there was no documentation in the Veteran's service treatment records of a diagnosis of hearing loss. This examiner concluded that, without any audiometric findings during service or shortly after service, it would be speculative to opine as to whether hearing loss was a result of active service. Both VA opinions against the claim are inadequate, as they do not adequately address the possibility of delayed-onset hearing loss or the Veteran's lay statements regarding in-service noise exposure and continuous hearing problems since service. Moreover, while the 2017 examiner emphasized the Veteran's reports of a recent onset of hearing loss following the 1998 head injury, she did not address the fact that the examining audiologist in 1998 attributed the Veteran's hearing loss to his noise exposure history at that time, which included noise exposures in service. Accordingly, these VA medical opinions are not probative. The Board finds that the Veteran is both competent to report some degree of hearing loss and the circumstances of his noise exposures in service, to include that his in-service noise exposure was more significant that his post-service noise exposure, and the Board finds him credible in this regard. The Board further finds that the Veteran is credible with regard to his assertions that his hearing loss has gradually worsened since his active duty service, indicating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Given the non-probative opinions of the VA examiners, the Veteran's statements, the opinion of the July 1998 audiologist and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. B. Tinnitus The Veteran reports constant ringing in his ears since service due to routine exposure to weapons fire. See December 2013 Statement in Support of Claim. The Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the presence of a current tinnitus disability is established. His in-service noise exposure is conceded as indicated above. A June 1983 Milwaukee VA treatment record notes the Veteran's complaint of constant ringing in his right ear. A February 1994 Milwaukee VA treatment record notes the Veteran's report of ringing in the ears. In July 1998, the Veteran presented to the Milwaukee VA Medical Center complaining of tinnitus following a head trauma. After noting the Veteran's military and work history, the attending audiologist noted the onset of tinnitus coincides with the head trauma. In a September 2013 Milwaukee VA hearing evaluation, the Veteran stated he has had tinnitus for the last 50 years. He noted that it has increased in severity in the past year. The Veteran was afforded VA examinations in March 2014 and February 2017. Following an examination and review of the claims file, both examiners opined it was less likely than not that tinnitus was due to the Veteran's military service. Both examiners' rationale was that the current tinnitus is related to a 1998 head injury, approximately 35 years after discharge from service. These opinions, as well as the opinion of the July 1998 audiologist, are inadequate, as they do not consider the Veteran's reports of continuous tinnitus since service, as well as documented treatment of ringing in the ears in 1983 and 1994 prior to the head injury. In March 2017, the Veteran submitted correspondence in response to the February 2017 VA examiner's opinion. The Veteran noted that the head injury aggravated, not caused, his already existing tinnitus. The Board finds the Veteran has competently and credibly reported that he first noticed tinnitus during service and that his symptoms have continued since service. Thus, resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is also warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs