Citation Nr: 1800570 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-12 583 ) 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 Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran requested a video conference hearing before a Veterans Law Judge in the April 2014 substantive appeal. However, he withdrew his request for a hearing in November 2016. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and it will proceed to adjudicate the claim based on the evidence of record. See 38 C.F.R. § 20.704 (2017). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss is related to in-service noise exposure during active military service. 2. The evidence is at least evenly balanced on whether the Veteran's tinnitus is related to in-service noise exposure during active military service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Considerations The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Criteria and Analysis The Veteran contends that his bilateral hearing loss and tinnitus were caused by acoustic trauma during active military service. Specifically, he asserts that he was exposed to loud noise while working on jet engines in the hanger deck and during flight operations on the flight deck as an aircraft mechanic during active military service. See January 2012 VA Form 21-426, Veteran's Application for Compensation and/or Pension, January 2013 notice of disagreement, and April 2014 substantive appeal. He also asserts that his bilateral hearing loss and tinnitus began during service. Id. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence of record establishes that the Veteran currently has tinnitus and a bilateral hearing loss disability under VA regulations. The Veteran has reported that he experiences tinnitus and the Veteran is considered competent to report the observable manifestations of his claimed disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is nothing in the record that indicates the Veteran's statements are not credible. Additionally, the September 2012 VA examination report indicates a current diagnosis of subjective recurrent tinnitus. With respect to the Veteran's service connection claim for bilateral hearing loss, the September 2012 VA examination report documents auditory thresholds in both ears of 40 decibels (dB) or higher in at least one of the required frequencies. The examiner determined that the Veteran has bilateral sensorineural hearing loss. Thus, the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and a bilateral hearing loss disability. See 38 C.F.R. § 3.385 (2017). A review of the Veteran's service treatment records reveals no complaints of tinnitus or hearing loss during active military service. The Veteran's separation examination in August 1972 shows that his ears were evaluated as clinically normal. There is no documentation that the Veteran reported symptoms of tinnitus during his separation examination. The audiogram results for the August 1972 separation examination does not document a significant decrease in hearing in either ear. Nonetheless, the evidence shows that the Veteran was exposed to loud noise during active military service. In this regard, the Veteran asserts that he was exposed to loud noise while working on jet engines in the hanger deck and during flight operations on the flight deck as an aircraft mechanic during active military service. His DD Form 214 shows that his military occupational specialty (MOS) was an aircraft mechanic. Exposure to loud noise would be consistent with the circumstance of his service. See 38 U.S.C.A. § 1154(a) (2017). Thus, the Board finds that the Veteran experienced acoustic trauma during active military service. With respect to the issue of whether the Veteran's hearing loss and tinnitus are related to active military service, the Veteran contends that he experienced tinnitus and hearing loss since service. See January 2012 VA Form 21-426, January 2013 notice of disagreement, and April 2014 substantive appeal. The Veteran is competent to report the onset and persistent nature of his hearing loss and tinnitus symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (holding that particularly with respect to claims for tinnitus, a veteran is competent to present evidence of a diagnosis and continuous symptoms). There is nothing in the claims file to indicate that the Veteran's statements as to the onset of his hearing loss and tinnitus in service and that it was continuous or recurrent since service are not credible. Thus, the Board finds that the lay statements as to experiencing bilateral hearing loss and tinnitus in service with continuity of symptomatology since service are credible. The claims file contains a negative medical opinion regarding whether the Veteran's hearing loss and tinnitus are related to active military service. Specifically, the VA examiner in September 2012 provided the opinions that the Veteran's hearing loss and tinnitus are less likely than not (less than 50/50 probability) caused by or a result of military noise exposure. The examiner explained that the Veteran's exit examination shows no significant threshold shifts when compared to the entry examination. The examiner also noted that the Veteran reported that the onset of his hearing loss and tinnitus was over a decade after separation from service and he reported a history of noise exposure post-military service. The Board finds the September 2012 medical opinions are of low probative value with respect to providing a negative nexus to active military service. In this regard, to the extent the examiner's opinions are based on the fact that the service treatment records reveal that the Veteran did not meet the definition of a hearing loss disability for VA purposes and that there was no significant threshold shift in hearing loss when comparing the entrance examination to the separation examination, the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The VA examiner's opinions were also based on the incorrect assumption that the onset of the Veteran's hearing loss and tinnitus began over a decade after military service. The Veteran explained in his substantive appeal that the examiner misinterpreted his statements during the examination. He clarified that he informed the examiner that he first sought treatment for his hearing loss and tinnitus problem in the late 1980's, but that he experienced hearing loss and tinnitus for a long time prior to seeking treatment and that it has been an ongoing problem since service. Thus, the medical opinion was based on incorrect lay evidence. Finally, with respect to the examiner noting that the Veteran experienced post-service acoustic trauma, the Board notes that the Veteran reported the use of hearing protection during his career as a railroad steel gang laying track, sheetrocking, and as a self-employed landscaper. Moreover, even assuming the Veteran suffered hearing loss as a result of his post-service employment, this does not preclude the reasonable possibility that the Veteran's hearing loss and tinnitus began as a result of his military service. Given the evidence of record shows acoustic trauma in service and the Veteran's credible assertions of the onset of bilateral hearing loss and tinnitus in service with continuity of symptomatology to the present, the evidence is at least evenly balanced in showing that the current bilateral hearing loss and tinnitus had their onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs