Citation Nr: 1802392	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  16-38 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Acosta, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1950 to December 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  Tinnitus is etiologically related to acoustic trauma sustained in active service.

2.  The Veteran's bilateral hearing loss is at least as likely as not related to his active service.

CONCLUSIONS OF LAW

1.  Tinnitus was incurred in active service.  38 U.S.C.A. § 1101, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Assist and Notify

Since the Board is granting the Veteran's appeals there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to these claims, given that any error would be harmless.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1101 (West 2014); 38 C.F.R. § 3.303 (2016).
 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Merits

The Veteran has asserted that he has hearing loss and tinnitus as a result of acoustic trauma sustained while in active service.  Specifically, the Veteran has reported acoustic trauma in the form of gunfire, artillery.  In terms of exposure to acoustic trauma via gunfire, the Veteran's Air Force Specialty Code (AFSC) of military policeman corroborates the Veteran's statements.

The Board upon review of the Veteran's testimony finds the contentions credible, and moreover, it is noteworthy that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim.  The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, where there is no evidence of the appellant's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

A review of the service medical records is silent for treatment for or a diagnosis of hearing loss or tinnitus while the Veteran was in active service.  However, the Veteran has reported that he first experienced hearing loss and tinnitus while in active service and has continued to experience hearing loss and tinnitus since his separation from active service.  The Veteran is competent to report when he first experienced hearing loss and tinnitus and that the symptoms have continued since service.  Heuer v. Brown, 7 Vet. App. 379   (1995); Falzone v. Brown, 8 Vet. App. 398   (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Moreover, the Board finds the Veteran to be competent and credible with regard to these claims.

The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).  The Veteran is competent to identify hearing loss and tinnitus and his statements have been found credible.  An in-service incurrence of hearing loss and tinnitus is thus established.

Turning to a current diagnosis and relationship between the Veteran's in-service noise exposure and his current hearing loss and tinnitus, the Veteran provided statements that he has had hearing loss since service.  The Board finds that the Veteran is competent to establish continuity of symptomatology of his hearing loss since service.  38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 

Moreover,  a September 2015 VA audiological examination demonstrated that the Veteran has hearing loss for VA purposes under 38 C.F.R. § 3.385 (2017) establishing a current disability.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
45
85
95
105
LEFT
60
85
105+
105+
105+

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 0 percent in the left ear.

Although the September 2015 VA examiner's provided a negative opinion on the issue of a nexus between the Veteran's service and current hearing loss and tinnitus, the Board finds that the examiner's opinion has no probative value as the Veteran was provided only whisper test results during service and the examiner inappropriately classified these highly unreliable tests as sufficient to demonstrate normal hearing loss in service.  Moreover, the VA examiner did not address the Veteran's statements on the matter of hearing loss instead focusing on the lack of documented treatment, reasoning that the Court of Appeals for Veterans Claims has held lacks value.  See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (symptoms, not treatment, are the essence of any evidence of continuity of symptomatology).

In sum, the Board has conceded acoustic trauma during active service.  The Veteran has competently reported that he first experienced hearing loss and tinnitus while in active service and that he has continued to experience it since that time and those statements have been found competent and credible by the Board.

Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for hearing loss and tinnitus is at least in equipoise.  Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted.  38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for bilateral hearing loss is granted.








____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs