Citation Nr: 18140107 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-20 440 DATE: October 2, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his currently diagnosed bilateral hearing loss is related to his in-service noise exposure. 2. Resolving all doubt in the Veteran’s favor, his currently diagnosed tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received later in November 2016. 38 U.S.C. § 7105(e)(1). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). 3. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Additionally, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has bilateral hearing loss and tinnitus as a result of noise exposure he experienced during his military service. As an initial matter, the Board notes that the record reflects a current diagnosis of bilateral hearing loss and tinnitus. See February 2015 VA examination. The Board notes that the Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss, to include his in-service audiograms as considered under American Standards Association (ASA) standards and International Standards Organization – American National Standards Institute (ISO-ANSI) standards, or tinnitus; however, such reveal a shift of 5 to 10 decibels at each threshold. Furthermore, the Board finds that the Veteran’s statements regarding his in-service noise exposure to weapons, artillery, a motorized generator, and Morse code via headphones, to be competent and credible as such are consistent with his military occupational specialty (MOS) as a radio teletype operator. Thus, the remaining question is whether the Veteran’s bilateral hearing loss and tinnitus are related to his military service. In this regard, a February 2015 VA examiner reviewed the record, interviewed the Veteran, and conducted an audiological evaluation, and opined that the Veteran’s bilateral hearing loss and tinnitus were not at least as likely as not caused by or a result of an event in military service. In this regard, he noted that the Veteran was exposed to hazardous noise levels while in service; however, hearing tests conducted at enlistment and discharge failed to show hearing loss/hearing injury while in service with no significant threshold shift beyond normal variability while in service. Consequently, the examiner found that the Veteran’s bilateral hearing loss and tinnitus were less likely as not caused by or a result of noise exposure in service. Conversely, in a November 2016 letter, a private audiologist noted the nature of the Veteran’s in-service noise exposure as described above as well as his denial of exposure to excessive noise in his civilian occupation or hobbies, and conducted an audiological evaluation. She then opined that, based on the Veteran’s history and results of his audiometric evaluation, his bilateral hearing loss and tinnitus were at least as likely as not related to his in-service noise exposure. After a careful review of the record, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss and tinnitus are related to his acknowledged in-service noise exposure. In this case, the February 2015 VA examiner and November 2016 private audiologist are both competent medical professionals who considered all relevant facts and accepted medical principles. Consequently, both opinions are entitled to equal probative weight. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his currently diagnosed bilateral hearing loss and tinnitus are related to his in-service noise exposure. Thus, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel