Citation Nr: 18140695 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-04 611 DATE: ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is etiologically related to active service. 2. The Veteran’s tinnitus is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1963 to September 1966. In June 2017, the Veteran testified at a Board hearing. The transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, to include sensorineural hearing loss and tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b) (2017). The presumption relating to a continuity of symptomatology can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Impaired hearing is considered a disability for VA purposes 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 Veteran testified that, while serving in Vietnam, he was in close proximity to field artillery and helicopters. The Veteran reported that he has suffered from ringing in his ears ever since. The Veteran’s DD-214 confirms his military occupational specialty was field artillery and he received the combat infantryman’s badge. The Board finds the Veteran’s testimony competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and make a determination as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptomatology). Thus, exposure to acoustic trauma during active service is conceded. Furthermore, due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, a current diagnosis of tinnitus is established. The Veteran also has a current diagnosis of bilateral hearing loss; he attended a VA examination in December 2012 and underwent audiometric testing. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 40 75 70 LEFT 30 45 75 75 75 The Veteran’s Maryland CNC test yielded a 92 percent for the right ear and 72 percent for the left ear. Thus, establishing a current diagnosis of bilateral hearing loss per VA standards. See 38 C.F.R. § 3.385. The VA examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss and tinnitus is caused by or a result of military service. The examiner noted that the Veteran’s service treatment records does not show hearing loss at discharge or a significant threshold shift beyond normal variability during service. In January 2014 the VA examiner added an addendum to the December 2012 opinion, which cited “Noise and Military Service: Implications for Hearing Loss and Tinnitus” and “Occupational Noise-Induced Hearing Loss” to support the contention that delayed onset of hearing loss is unlikely. The Veteran provided a medical opinion from a private doctor, Dr. B. J., who is a board-certified doctor of audiology. Dr. B. J. opined that the Veteran’s hearing loss and tinnitus are more likely than not due to acoustic trauma in service and explained that cochlear hair cell damage occurs during noise exposure but may not manifest for many years, similar to sun and skin damage. Dr. B. J. noted that the Veteran’s hearing was normal in low frequencies; however, he had severe hearing loss in high frequencies. Dr. B.J. reported that this is consistent with the Veteran’s described military noise exposure. The Board finds the opinion of Dr. B.J. more probative than that of the VA examiner. The VA examiner relied on an absence of evidence and noted that the Veteran’s service treatment records did not establish hearing loss at discharge. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Furthermore, 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Therefore, the Board finds the VA examiner’s opinion unpersuasive. Conversely, Dr. B. J., considered the Veteran’s statements and audiometric findings and provided clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, significant weight is given to the opinion of Dr. B. J. and the Board finds the Veteran’s current hearing loss is etiologically related to his in-service exposure to acoustic trauma. The Board has fully considered the lay evidence of record and notes that lay evidence is competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran provided credible testimony establishing continuous ringing in his ears since active service; therefore, the Board finds that tinnitus is etiologically related to the Veteran’s military service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, service connection for bilateral hearing loss and tinnitus is warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel