Citation Nr: 1802356	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-42 251	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran had active military duty from September 1959 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a copy of the hearing transcript is associated with the Veteran's record.  At the hearing, the Veteran granted waiver of initial consideration by the RO of any additional evidence received.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran has a current diagnosis of tinnitus; he was exposed to hazardous noise levels in service, service medical examination reports demonstrate significant threshold shifts in service, he first noticed tinnitus during active service, and the evidence reasonably shows tinnitus occurred during service.


CONCLUSION OF LAW

Service connection for tinnitus is warranted.  38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

As a preliminary matter, the Board has reviewed the Veteran's record and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

Legal Criteria, Factual Background and Analysis

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

Certain chronic diseases to include tinnitus (as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for an organic disease of the nervous system).  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.  For the chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service.  38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2).  Competent medical evidence is necessary where the determinative question requires medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Specifically, with tinnitus, a lay witness is competent to testify as to onset and frequency because of the nature of the disorder.  Charles v. Principi, 16 Vet. App. 370 (2002)

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.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  

Here, the Board notes that, in the April 2015 VA hearing loss and tinnitus examination report, the examiner acknowledged that the Veteran was exposed to hazardous noise levels while in service and conceded to in service hazardous noise exposure.  The Veteran reported having recurrent tinnitus.  The examiner opined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure.  The rationale for the opinion was that electronic hearing testing conducted during service showed the Veteran did not have a significant threshold shift beyond normal variability while in service.  The VA examiner further noted "Evidence in this case clearly and convincingly show the veteran did not have a significant threshold shift beyond normal variability while in service."  The Board has reviewed and compared the Veteran's audiometer levels recorded in service and note discrepancies in VA examiner's findings regarding the threshold shifts.  For example: on the Veteran's September 1959 Air Force enlistment medical examination, his hearing was measured by whisper voice test, which was 15/15; no audiometer data was recorded.

The audiometer results were calibrated using ASA [American Standards Association] units.  After converting from ASA units to ISO [International Standards Organization] units the Veteran's audiometer results from February 1962 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
20
15
10
LEFT
20
15
15
20
20

After converting from ASA units to ISO units the Veteran's audiometer results from July 1963 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
5
LEFT
15
10
10
10
15

After converting from ASA units to ISO units the Veteran's audiometer results from May 1964 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
5
LEFT
15
10
10
10
15

After converting from ASA units to ISO units the Veteran's audiometer results from March 1965 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
10
10
10
LEFT
10
5
5
15
15

The Veteran's June 1968 service separation examination revealed audiometer "ASA 1951" results.  Notably, here the use of ASA units was specified.  After converting from ASA units to ISO units the Veteran's audiometer results from June 1968 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
25
30
20
LEFT
25
25
25
30
25

According to the National Institute for Occupational Safety and Health (NIOSH) 15 dB [decibel] is considered a significant shift in hearing NIOSH recommends an improved criterion for significant threshold shift: an increase of 15 dB in the hearing threshold level at 500, 1000, 2000, 3000, 4000, or 6000 Hertz in either ear, as determined by two consecutive audiometric tests.  Criteria for a Recommended Standard: Occupational Noise Exposure, Revised Criteria 1998 by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, Cincinnati, Ohio, June 1998, http://www.cdc.gov/niosh/docs/98-126/pdfs p.6.

Based on the above in service audiometric test results, the Veteran had in fact experienced a significant threshold shift in hearing while in service.  As the VA examiner based the negative opinion as to causation on an invalid premise or rationale for the opinion, the April 2015 VA hearing loss and tinnitus examination opinion lacks probative value.  In essence, the evidence of record reveals that the Veteran had significant threshold shifts that occurred during active service.  Accordingly, as the Veteran was exposed to hazardous noise levels during active service and there is lay evidence that he first noticed tinnitus while on active duty (See August 2016 Substantive Appeal/VA Form 9), as well as a current diagnosis of tinnitus, service connection is warranted.  See Charles, supra.

The Board finds that tinnitus had its onset in active service with a continuity of symptoms since service.  Therefore, service connection for tinnitus is warranted.


ORDER

Service connection for tinnitus is granted.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs