Citation Nr: 18141977 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 14-30 311 DATE: October 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for bilateral tinnitus is granted. FINDING OF FACT The probative evidence demonstrates that the Veteran’s bilateral hearing loss disability and bilateral tinnitus were incurred during active service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. Resolving all doubt in the Veteran’s favor, the criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant in this case, served in the Army National Guard, with active duty from May 1968 to December 1969, as indicated on his DD Form 214. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated February 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The February 2013 rating decision also denied service connection for a right leg fracture, and granted service connection for a right foot fracture. Although the Veteran timely submitted a Notice of Disagreement in July 2013 appealing the denial of service connection for his right leg, and sought a higher disability rating for his right foot, as well as the denial of service connection for bilateral hearing loss and tinnitus, he perfected an appeal only for the hearing loss and tinnitus claims. See Appeal to Board of Veterans’ Appeals (VA Form 9) dated July 2, 2014. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) are considered a “chronic disease” under 38 C.F.R. § 3.309(a). Where there is evidence of acoustic trauma, tinnitus is considered a “chronic disease” under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (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). The presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. 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 in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Bilateral Hearing Loss and Tinnitus The Veteran asserts that his currently diagnosed hearing loss and bilateral tinnitus were caused by acoustic trauma in service, specifically the firing of heavy artillery without the benefit of hearing protection, and that his hearing loss and tinnitus started in-service and have continued since his separation from service. See Notice of Disagreement dated July 12, 2013; VA Form 9 dated July 2, 2014. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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 Board finds that the Veteran has a bilateral hearing loss disability that meets the VA regulatory criteria set forth under 38 C.F.R. § 3.385. A June 5, 2013 VA audiometric examination report shows puretone thresholds of 40 dB or greater at 3000 and 4000 Hz in both the right and left ears. There is no indication that the audiometric results are unreliable or otherwise inadequate. The report conveys that the Veteran was diagnosed with sensorineural hearing loss in both ears. Based on this evidence, a current disability is established. Additionally, a veteran is competent to report matters within his or her own personal knowledge such as experiencing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears which is capable of lay observation); See Barr, 21 Vet. App. at 308-09. As discussed above, lay evidence may establish a diagnosis of a simple medical condition. Jandreau, 492 F.3d at 1377. Because the Veteran is competent to report that he currently has bilateral tinnitus, the Board finds that the Veteran has a current disability of recurrent bilateral tinnitus. During service, the Veteran’s Military Occupation Specialty (MOS) was Light Weapons Infantryman. In his Notice of Disagreement and substantive appeal, the Veteran asserts that his currently diagnosed hearing loss and bilateral tinnitus were caused by acoustic trauma in service, specifically the firing of heavy artillery without the benefit of hearing protection. Moreover, he has consistently reported that his hearing loss and tinnitus started in-service and have continued since his separation from service. See Notice of Disagreement dated July 12, 2013; VA Form 9 dated July 2, 2014. The STRs reflect that the Veteran denied hearing loss and ear problems during service examinations, including induction and separation examinations, and service examiners indicated throughout service that the Veteran’s hearing was normal. The STRs show that his hearing was tested during his April 1966 enlistment examination by whispered voice and spoken voice tests, it being noted that the results of both tests were 15/15, bilaterally. The phrase “NOT REQUIRED” was typed over the table for recording audiometric readings. As such, an undated “Induction Audiogram” noting an auditory threshold of 15 decibels at 500 Hz for the right ear, and 10 decibels at 500 and 1000 Hz for the left ear would seem to reflect hearing acuity for a subsequent period of active duty, not for the Veteran’s initial enlistment. A November 1966 examination for separation from active duty shows that his hearing was tested by spoken voice test with results of 15/15 noted. An April 1968 examination for active duty notes auditory thresholds of zero, bilaterally, from 500 to 4000 Hz. An undated audiogram reflects auditory thresholds of 20 decibels or less from 500 to 4000 Hz. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI). Converting the undated audiometric readings to ISO-ANSI data reveals an auditory threshold of 29 decibels at 500 Hz for the right ear, and 24 decibels at 500 Hz and 20 decibels at 1000 Hz for the left ear, which indicates some hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss). The Veteran’s August 1969 separation examination notes auditory thresholds of 10 or less, bilaterally from 500 to 4000 Hz. A veteran, as a layperson, may be competent to testify on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, he is without a doubt competent to report that he was exposed to acoustic trauma during service. See generally Charles v. Principi, 16 Vet. App 370, 374 (2002). Here, the Board finds the Veteran’s testimony to be competent as well as credible considering the nature of his service. Accordingly, the Board finds that the Veteran’s competent lay accounts of his duties in service and exposure to acoustic trauma are consistent with the circumstances, conditions, and hardships of his service and are, therefore, credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board also finds that although the Veteran’s STRs do not specifically indicate exposure to acoustic trauma, and the record does not otherwise reflect that the Veteran had any permanent hearing loss or tinnitus complaints, treatments, or diagnoses during his active service, the Veteran was exposed to in-service hazardous noise resulting in acoustic trauma to his ears; accordingly, an in-service event is established. Therefore, the dispositive issue is whether there is a nexus between the current hearing loss and tinnitus and the in-service acoustic trauma. In January 2013, the RO requested that a VA audiologist review the Veteran’s claims file and provide an opinion as to whether the Veteran’s current hearing loss and tinnitus are at least as likely as not caused by in-service acoustic trauma. Curiously, an in-person examination to include audiological testing was not requested. See Request for Physical Examination (VA Form 21-2507a) dated January 16, 2013. The examination report notes that the examiner reviewed the claims file without an in-person examination of the Veteran. The examiner concluded that the Veteran’s hearing loss and tinnitus are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran’s hearing was found to be within normal limits at the time of enlistment and separation, therefore the current hearing loss was not caused by or a result of an event and/or MOS in military service. The examiner also concluded that the etiology of tinnitus could not be determined with reasonable certainty based on available evidence in the record or scientific knowledge, noting that there was no shift in hearing from the time of enlistment to the time of separation that is consistent with reported tinnitus, and that the Veteran denied ear and hearing problems at the time of separation from service, and tinnitus was not reported during active duty service. See VA examination report dated January 29, 2013 at pg.3. The examiner’s opinion is based on normal hearing thresholds at the Veteran’s enlistment and separation from service without significant high frequency threshold shifts. Nevertheless, this opinion is not adequate because it impermissibly relied on the absence of evidence in the Veteran’s service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, several of the Veteran’s in-service hearing examinations used only whispered voice and/or spoken voice tests. Although such voice tests are an alternative means of testing hearing, they cannot measure audiometric threshold shifts, can neither establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, and are not capable of capturing hearing loss that may have begun in service following acoustic trauma. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). For these reasons, an absence of hearing loss shown by whispered or spoken voice testing cannot be relied upon in denying a claim for service connection for hearing loss, or as evidence of no hearing loss during service. Significantly, the January 2013 VA examination did not account for the aforementioned deficiencies in the whispered and spoken voice tests. Lastly, the opinion completely discounts the lay evidence of record, i.e., the Veteran’s competent reports of pertinent symptoms in service and after service. For these reasons, the Board finds the opinion inadequate to decide the claim and ultimately of little to no probative value. Notwithstanding the lack of a probative nexus opinion, the Board has duly considered the Veteran’s lay statements of symptoms since service. The Veteran has indicated that he experienced hearing loss and tinnitus when he was exposed to artillery fire during active duty service, and he started noticing hearing loss and tinnitus prior to separation from service. See Notice of Disagreement dated July 12, 2013; VA Form 9 dated July 2, 2014. He also stated that he always used adequate hearing protection during post-service occupational and recreational exposure to acoustic trauma. See VA Form 9 dated July 2, 2014. The Board has no reason to doubt the credibility of the Veteran’s lay reports. Although a lay person (including a lay adjudicator) is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay veteran and the lay adjudicator to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of the hearing loss and tinnitus symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (noting that “any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion”). Accordingly, the Board finds that, with resolution of any doubt in the Veteran’s favor, his credible statements of his in-service noise exposure and the continuity of symptomatology since separation from service warrant service connection for   bilateral hearing loss and bilateral tinnitus on a presumptive basis showing “continuous” post-service symptoms. 38 C.F.R. § 3.303(b). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel