Citation Nr: 18142321 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-20 304A DATE: October 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s current bilateral hearing loss is related to his active service. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s current tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). 2. [Grant] The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1961 to August 1962, with additional service in the Army National Guard. In December 2016, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing held at the Waco, Texas Regional Office. A transcript of that hearing is of record. The VLJ who held the hearing is no longer employed by the Board. By an August 2018 letter, the Veteran was provided the opportunity to request another hearing. The letter informed him that if he did not reply within 30 days of the date of the letter, the Board would assume that he did not want a new hearing. No response was received. The Board will adjudicate the claims. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the veteran. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). Sensorineural hearing loss and tinnitus are chronic diseases as defined by 38 C.F.R. § 3.309 (a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case. When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss was caused or aggravated by his active service. For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A June 2012 VA hearing examination diagnosed the Veteran with bilateral hearing loss and his audiogram showed that the level of severity met the criteria set forth in 38 C.F.R. § 3.385. The Board further acknowledges that during his active service, the Veteran served as a wheel and tank track mechanic, a military occupational specialty that would have been associated with high amount of military noise exposure. In February 2013, the Veteran submitted medical opinions from two private physicians concerning his bilateral hearing loss. The first medical opinion states: [The Veteran] is a veteran of the United States Army from 1959 through 1965 during which time he had unprotected noise exposure. His entrance medical exam showed normal hearing while his exit exam revealed left-sided hearing loss. He describes a history of noise exposure to artillery during training and performance of his normal duties during his active duty service. [I]t is my opinion that his noise exposure during his active duty service contributed to his mixed hearing loss and tinnitus which he currently suffers from. I have personally reviewed this former serviceman's records and verify the presence of hearing loss during his exit physical. The second private medical opinion submitted by the Veteran in February 2013 states: This is a letter of appeal regarding [the Veteran]. He is a veteran of the US Army from 1959 thru 1965. He had significant unprotected noise exposure during that time. He has had progressive hearing loss and associated tinnitus. On his medical exam at entrance and discharge he had mild hearing loss. I believe that more likely than not his active duty service aggravated the mild hearing loss he had at entrance to active duty and is more likely than not contributory to his sensorineural hearing loss and associated tinnitus currently. Noise exposure is known to cause gradual sensorineural hearing loss. Following the June 2012 VA hearing examination, the VA examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or the result of an event in military service. The VA examiner explained that the Veteran’s November 1961 enlistment examination revealed a mild left ear hearing loss and normal hearing acuity in the right ear. However, the Veteran’s June 1962 separation examination revealed normal hearing acuity bilaterally, indicating that the Veteran’s hearing had not changed significantly during service. In December 2016, the Veteran testified before a VLJ concerning the etiology of his current bilateral hearing disability. The Veteran testified to high amounts of military noise exposure without hearing protection during his active service. The Veteran specifically noted unprotected hearing exposure to tank engine noise, tank artillery fire, and small arms fire. The Board finds the Veteran’s testimony to be competent and credible. In light of the evidence discussed above, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s current bilateral hearing loss was caused or aggravated by his active service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing discussion, the evidence is at least in equipoise regarding service connection. As such, resolving all doubt in favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus In a June 2012 VA tinnitus examination, and again in a December 2016 hearing, the Veteran testified that he has had tinnitus since his active service. The Veteran’s military service records confirm service in as a tank wheel and track mechanic and indicate the Veteran was exposed to high noise levels including tank engine noise, small arms fire, and tank artillery fire. The Veteran is competent report the onset of ringing in his ears. Kahana, 24 Vet. App. at 435. His report that tinnitus began in service and has continued since then is credible and is probative evidence in favor of his claim. As noted in detail above, the Veteran has submitted to private medical opinions indicating that his current tinnitus was caused or aggravated by his active service. In a June 2012 VA tinnitus examination, the VA examiner noted that the etiology of the Veteran’s tinnitus could not be determined without resorting to speculation. The VA examiner’s opinion is not probative. For these reasons, the Board finds that the preponderance of the probative evidence of record is in favor of the Veteran’s claim for service connection for tinnitus. Therefore the appeal is granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel