Citation Nr: 1803577	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-34 604	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1964 to December 1967.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO).  The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2017.  A transcript of that hearing is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The most probative evidence of records shows that it is at least as likely as not that the Veteran's tinnitus was incurred in or caused by service.

2.  The most probative evidence of records shows that it is at least as likely as not that the Veteran's bilateral hearing loss was incurred in or caused by service.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for entitlement to service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 5107B (West 2014); 38 C.F.R. §§ 3.102, 3.303, (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000, VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2015).  In this decision, the Board grants service connection for tinnitus and hearing loss.  This represents a complete grant of the benefits sought on appeal.  Thus, any deficiency in VA's compliance with the notification and assistance requirements, to include those set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010), is deemed to be harmless error and any further discussion of VA's responsibilities is not required.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Tinnitus

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system.  38 C.F.R. §§ 3.307, 3.309(a).  The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309 (a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease of the nervous system.'"  Moreover, the Court indicated that, as such a presumptive condition, tinnitus warrants consideration of the continuity of symptomatology provisions found in 38 C.F.R. § 3.303 (b).  Fountain v. McDonald, 27 Vet. App. 258 (2015).

The Veteran contends that his tinnitus began intermittently in service, and continued since.  The Veteran contends that while in service, he was exposed to gunfire during basic training, and often heard loud noises through his earphones while a Morse code specialist.  The Veteran is competent to report symptoms of tinnitus as they require only personal knowledge from the senses.  See Layno v. Brown, 6 Vet. App. 465, 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Therefore, his reports of tinnitus constitute competent evidence of a current tinnitus disability.

The record supports the Veteran's contentions regarding his stated military occupational specialty.  The Board finds his description of noises encountered in his occupation credible because nothing in the record impugns his statements in that regard.

The Board recognizes that the April 2012 VA examiner provided a negative nexus opinion based on the Veteran's normal hearing at entry and exit from service and a history of significant noise exposure post-military service.  The examiner noted the Veteran's report of onset in the 1970's, several years after military service.  However, the examiner's opinion does not reflect consideration of the Veteran's contention that tinnitus had its onset during service, nor does it address shifts in the Veteran's puretone thresholds during the course of his active service, as evident in a report of medical examination for separation from active service.  Accordingly, the Board finds no reason to afford greater probative weight to the examiner's opinion than to the Veteran's competent and credible statements.  As such, the evidence is at least in relative equipoise as to whether the Veteran's tinnitus was chronically manifested to a compensable degree within one year of his separation from active service and has continued since that time.  The Board must therefore resolve the benefit of the doubt in the Veteran's favor, and conclude that service connection for tinnitus is warranted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hearing Loss

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  The absence of in-service evidence of a hearing disability is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when 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 dB, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran had in-service audiological evaluations in January 1964 and September 1967, at which time auditory thresholds were recorded.  However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under standards most favorable to the Veteran's appeal.  Additionally, the April 2012 VA examiner stated that units of the Veteran's induction examination were likely recorded using ASA calibration due to the date of the examination.

As it relates to VA examinations and VA records, audiological reports were routinely reported in ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. 

In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data.

After conversion, which is most favorable to the Veteran's claim, audiological examination in January 1964 recorded pure tone thresholds, in decibels, as follows:


500
1000
2000
3000
4000
RIGHT
5
0
0
0
-5
LEFT
15
0
5
10
5


A September 1967 separation examination recorded pure tone thresholds, in decibels, as follows:


500
1000
2000
3000
4000
RIGHT
15
10
10
X
5
LEFT
15
20
20
X
5

The April 2012 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss after examination at that time found multiple frequencies exceeding 40 decibels bilaterally.  The examiner opined that the Veteran's current hearing loss disability was not at least as likely as not caused by or a result of service.  The examiner's rationale was based on normal hearing at entry to and exit from service, and that the Veteran reported onset in the 1970's, years after service.  Further, the examiner noted a career in construction where the Veteran reported using hearing protection 90 percent of the time.  The examiner stated that presbycusis, and occupation and recreational noise exposure could not be ruled out as contributing factors.  

While the Board acknowledges that the Veteran did not have a hearing loss disability under 38 C.F.R. § 3.385 that manifested during service, nor did he have hearing frequencies in excess of 20 dB, the Veteran is competent to report difficulty hearing since service.  The Veteran is also deemed credible in his contentions.  The Board does not find that the April 2012 examiner's opinion should be given more probative weight than the competent and credible assertions of the Veteran because the examiner failed to address multiple threshold shifts from entry to exit, and also did not address the Veteran's contentions that he has had difficulty hearing since service.  Further, with regard to occupational noise exposure, the Veteran reported using hearing protection and testified that he was often not around loud noises during construction.  

As such, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's current hearing loss disability may be etiologically related to service.  After resolving doubt in the Veteran's favor, and the Board therefore concludes that service connection for a bilateral hearing loss disability must be granted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs