Citation Nr: 1805269 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-33 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Spouse ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case file has since been transferred to the RO in Seattle, Washington. The Veteran and his spouse presented sworn testimony at an September 2016 hearing held at the RO chaired by the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his service. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus is related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R § 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims of entitlement to bilateral hearing loss and tinnitus are being granted herein. Accordingly, VA's duties to notify and assist with respect to these issues are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide these issues. 38 U.S.C. § 5103, 5103A ; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are qualifying chronic diseases as they are organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). As a result, service connection via the demonstration of continuity of symptomatology is applicable. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The medical evidence of record establishes that the Veteran has current disabilities of bilateral hearing loss (as per 38 C.F.R. § 3.385) and tinnitus. (November 2012 VA examination). Additionally, the Veteran reports that during active service, he was exposed to noise from aircraft engines, particularly in bunkers where he worked 12 hour shifts. VA has conceded the Veteran's in-service noise exposure, as it is consistent with his duties as an aircraft electrician. In short, the requirements for elements (1) and (2) of Shedden have been met. As for element (3) of Shedden, a medical nexus, the November 2012 VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by acoustic trauma sustained during military service. The rationale was that the hearing testing conducted at enlistment and at discharge showed normal hearing. The examiner further opined that the Veteran's tinnitus was less likely as not related to noise exposure or acoustic trauma incurred in military service based on the same rationale, and stated that the Veteran's tinnitus was a symptom related to hearing loss. Although the examiner mentions the Veteran's contention that his hearing loss and tinnitus began in service and described the puretone thresholds tested in service, the opinion did not include a discussion of either. The Board acknowledges the November 2012 VA examiner opined that the Veteran's hearing loss and tinnitus were less likely than not caused by service, based on the rationale that the Veteran did not have hearing loss in service. As the opinion is based on the Veteran's normal hearing during service, it is of limited probative value as 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). In fact, during the September 2016 hearing, the Veteran explained that he noticed hearing loss and tinnitus during service and that after service, his hearing never returned to its pre-service acuity. The Veteran further testified that his hearing loss and tinnitus have worsened over time. The Veteran's spouse, testified that when they met over 37 years ago she noticed that the Veteran did not hear as well as other people. She said that his hearing has gotten progressively worse, and that he often needs things repeated to him, and that he needs to play the television loudly. The Board found these statements to be competent and credible. Also of record is a May 2013 private medical opinion from Dr. G.L. who opined that the Veteran's hearing loss and tinnitus were at least as likely as not caused by or resulted from his service. No rationale was provided with this opinion, however. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of sensorineural hearing loss and tinnitus, private medical opinion and the credible lay assertions of record, the Board finds the medical evidence is at least in relative equipoise regarding these issues. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs