Citation Nr: 1805795 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-33 294 ) 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 WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel INTRODUCTION The Veteran had active service from October 1975 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran presented sworn testimony at 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 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). During the VA examination in January 2012, the Veteran was diagnosed as having bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss under 38 C.F.R. § 3.385. The examiner also noted the Veteran's current complaints of tinnitus. The requirements of Shedden element (1) have been met. Service treatment records are negative for complaints, treatment, or diagnosis of hearing loss and/or tinnitus. However, the Board takes notice of the Veteran's in-service audiological testing which, at times, indicate threshold shifts in his hearing acuity. It is also noted that the Veteran attributes his hearing loss and tinnitus to in-service noise exposure. His Certificate of Discharge documents his military occupational specialty of aircraft mechanic. The Board finds the Veteran's report of exposure to acoustic trauma to be credible given such is consistent with the circumstances of his service. 38 U.S.C. § 1154(b). Accordingly, in-service noise exposure is conceded and the requirements of Shedden element (2) have been met. As for element (3) of Shedden, a medical nexus, the January 2012 VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by acoustic trauma sustained during military service. Despite noting some fluctuation of the Veteran's hearing thresholds during service, particularly at 6000Hz, the examiner relied on the Veteran's hearing testing within normal limits at entry to and exit from service, and onset of symptoms reported to be in the 1980's becoming constant in the 1990's. The examiner noted that the Veteran has a history of noise exposure post-military service that could not be ruled out as contributing factors. The examiner also 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. The Board acknowledges the January 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). The Board further concludes that the VA examiner's notation that post-military noise exposure could not be ruled out as contributing factors to the Veteran's hearing loss is not dispositive of the Veteran's claim. During the June 2016 hearing, the Veteran clarified that he noticed hearing loss and tinnitus in service when he was away from the noise of his job, and immediately following service. He explained that while in service, ear protection was issued, but could often not be worn due to the potential for debris to fly into a jet engine. He stated that he got accustomed to the noise after years of service, but that when he separated, he noticed the hearing loss and tinnitus in such circumstances as needing to play the television loudly. He stated that in his jobs following service, as a welder and in a sawmill, hearing protection was mandatory, and in fact, employees would be terminated for failing to wear ear protection. The Board finds the competent and credible statements of the Veteran as to ongoing hearing loss and tinnitus since service to be of equal weight as the medical opinion. In view of the totality of the evidence, including the recognition of in-service noise exposure along with documented shifts in hearing acuity while in service, current finding of sensorineural hearing loss and tinnitus, and the credible lay assertions of record, the Board finds the 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 ON NEXT PAGE) 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