Citation Nr: 1805560 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-18 902 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's Spouse ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from April 1970 to April 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Buffalo, New York, Regional Office (RO). In May 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript is in the record. FINDINGS OF FACT 1. Tinnitus originated during service and has continued since that time. 2. Bilateral hearing loss was caused by in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Organic diseases of the nervous system, including tinnitus and hearing loss, are a "chronic diseases" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Chronic diseases will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). A. Tinnitus The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App 370, 374 (2002). The Veteran's service treatment records do not refer to tinnitus or ringing of the ears. No hearing test results were reported on the April 1974 physical examination for service separation and no report of medical history from that time is in the record. The Veteran's service personnel records indicate that he assisted in decommissioning the U.S.S. John W. Thomason. In the April 2014 statement of the case (SOC), VA found that the Veteran had in-service noise exposure. A May 2003 private treatment record states that the Veteran had long standing ringing in both ears. An October 2006 private audiological treatment record states that the Veteran reported ringing in his ears. In an April 2013 letter, the Veteran's private ear, nose, and throat specialist opined that, after reviewing the Veteran's medical history and service personnel records, it was most likely that the Veteran's tinnitus was a result of his in-service noise exposure from decommissioning the ship and from gun fire. He stated that the Veteran had been employed as a claims adjustor after service and had no post-service noise exposure. A May 2013 statement from the Veteran's in-service supervisor provided information as to in-service noise exposure and stated that the Veteran reported ringing in his ears while in service. He acknowledged that many of his fellow servicemembers never sought treatment while in service for the symptoms because "[w]e were young, thought we were tough and it would have been unmanly to be viewed as weak by shipmates." He stated that ear protection was not usually worn. In January 2014, the Veteran was afforded a VA audiological examination. The examination report stated that the Veteran reported tinnitus beginning 15 years prior and that, given that tinnitus did not begin until many years after service separation, it was less likely than not that the Veteran's tinnitus was caused by in-service noise exposure. The examiner did not provide an opinion as to the cause of the Veteran's tinnitus; did not discuss the April 2013 opinion of the Veteran's private ear, nose, and throat specialist stating that his tinnitus was caused by in-service noise exposure; wrote that the Veteran's tinnitus began 15 years prior despite his in-service supervisor stating that he had ringing in his ears while in service; and did not discuss the May 2003 private treatment record stating that the Veteran had long standing tinnitus. Therefore, this examination report is inadequate and of no probative value. At his May 2016 Board hearing, the Veteran's spouse testified that when the Veteran was in service, he would complain to her that he had ringing in his ears. The Veteran testified that while he would hear a hissing in his ears at the end of the day that would last all night while he was working on decommissioning the U.S.S. John W. Thomason. He reported that the tinnitus was initially intermittent but now he heard it constantly. In a May 2016 statement, the Veteran reiterated that he heard ringing in his ears while in service, had intermittently had ringing and hissing since that time, and was diagnosed with tinnitus approximately 17 years earlier. The Veteran, his spouse, and his in-service supervisor have all provided credible evidence that the Veteran had ringing in his ears in service. He currently has a diagnosis of tinnitus. Therefore, the disease is presumed to have been incurred in service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Service connection is warranted and the claim is granted. B. Bilateral Hearing Loss Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). As noted above, no hearing test results were reported on the April 1974 physical examination for service separation and no report of medical history from that time is in the record. VA conceded in-service noise exposure in the April 2014 SOC. Service treatment records do not contain complaints for hearing loss. An October 2006 private treatment record states that the Veteran first noticed hearing loss approximately 4 years prior and that he reported having been exposed to excess noise while in service. On examination, the Veteran exhibited, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 20 -- 35 LEFT 30 30 25 -- 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss and prescribed hearing aids. A June 2011 VA treatment record states that the Veteran had severe hearing loss. An October 2011 VA problem list states a diagnosis of bilateral sensorineural hearing loss. In the April 2013 letter, the Veteran's private ear, nose, and throat specialist opined that, after reviewing the Veteran's medical history and service personnel records, it was most likely that the Veteran's sensorineural hearing loss was a result of his in-service noise exposure from decommissioning the ship and from gun fire. He stated that the Veteran had been employed as a claims adjustor after service and had no post-service noise exposure. In his May 2013 statement, the Veteran's in-service supervisor provided information as to in-service noise exposure and stated that the Veteran reported temporary deafness while in service. He acknowledged that many of his fellow servicemembers never sought treatment while in service for the symptoms because "[w]e were young, thought we were tough and it would have been unmanly to be viewed as weak by shipmates." He stated that ear protection was not usually worn and that he remembered the Veteran "complaining about the noise and how his ears ached." The report of the January 2014 VA examination states that the Veteran exhibited, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 25 20 35 LEFT 20 30 25 30 40 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 94 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was not caused by service because the Veteran stated that he first noticed hearing loss approximately 30 years after service separation, that he had a family history of hearing loss, and that "[f]lat configuration of hearing loss is not consistent with noise exposure." The examiner also noted that an Institute of Medicine report stated that "there is no evidence to support the exist[e]nce of a delayed-onset noise induced hearing loss." The examiner did not discuss the conflict between the October 2006 private audiological examination that indicated the Veteran had right ear hearing loss that met the requirements of 38 C.F.R. § 3.385 and the audiological test results at this examination indicating that he did not; did not provide an opinion as to the cause of the Veteran's hearing loss despite noting that he had no pre-military or post-military noise exposure; did not discuss the April 2013 opinion of the Veteran's private ear, nose, and throat specialist stating that his hearing loss was caused by in-service noise exposure; and wrote that the Veteran's hearing loss began 30 years after service separation despite his in-service supervisor stating that he had temporary deafness and complained of aching ears while in service. Therefore, this examination report is inadequate and of no probative value. At the May 2016 Board hearing, the Veteran's spouse testified that when the Veteran was in service, he would sometimes complain about not being able to hear or that sound was muffled. The probative evidence of record indicates that the Veteran had bilateral sensorineural hearing loss that met the requirements of 38 C.F.R. § 3.385. The Veteran's spouse and his in-service supervisor provided credible evidence that the Veteran had temporary deafness while in service. The Veteran's private ear, nose, and throat specialist opined in April 2013 that Veteran's sensorineural hearing loss was caused by his in-service noise exposure. Therefore, service connection is warranted and the claim is granted. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs