Citation Nr: 18142850 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-09 672 DATE: October 17, 2018 ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s currently diagnosed bilateral hearing loss is causally related to his active service. 2. The Veteran’s currently diagnosed tinnitus is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served honorably in the Army on active duty from August 14, 1969 to July 17, 1971 with service in Vietnam. On April 13, 2013, the Atlanta VA Regional office (RO) denied service connection for bilateral hearing loss and tinnitus for lack of evidence establishing a current disability and nexus to military service. The Veteran did not appeal this decision but instead submitted new and material evidence that was received within one year of the April 13, 2013 decision. Specifically, the Veteran submitted a Form VA 21-4138 supplemental statement reporting his in-service noise exposure (submitted March 24, 2014). This rendered the April 13, 2012 non-final. 38 C.F.R. § 3.156(b). The RO re-adjudicated the Veteran’s claim on July 22, 2014 and again denied service connection for bilateral hearing loss and tinnitus. The Veteran then perfected an appeal of the July 22, 2014 rating decision re-adjudicating the April 13, 2013 claim. I. Factual Background The Veteran’s DD Form 214 reflects that his military occupational specialty (MOS) was cook and that, among other recognitions, he received an Army Commendation Medal. The Veteran reports that during active duty, he experienced combat activity and was proximally located to loud noises including mortar and artillery fire when he drove large trucks as a part of convoys to deliver food to troops in the field approximately five times a week. He also reports that on at least one occasion he was directly exposed to mortar attack. He further reports that he has experienced ringing in his ears since his time in service. The Board sees no reason to question the credibility of the Veteran’s testimony and finds that exposure to acoustic trauma has been established. II. Analysis a. HEARING LOSS Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. For VA disability compensation purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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’s May 2014 VA audiological examination revealed pure tone thresholds in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 25 LEFT 20 25 10 15 35 The average decibel loss was calculated as being 32.5 in the right ear and 27.5 in the left ear. Speech recognition scores, using the Maryland CNC Word List, were 88 percent in the right ear and 86 percent in the left ear. Therefore, the Veteran has a hearing loss disability as defined by VA regulations. In reviewing the Veteran’s service treatment records and reported history of noise exposure through military service, the VA examiner opined that it was “at least as likely as not the [Veteran’s] hearing loss is the result of noise exposure during military service.” Therefore, the medical evidence, as well as the Veteran’s competent and credible statements about his in-service experiences and his in-service and post-service symptoms, all support a finding that the Veteran’s bilateral hearing loss is causally related to his in-service exposure to hazardous noise. Accordingly, service connection for bilateral hearing loss is warranted. b. TINNITUS Tinnitus that has been diagnosed on the basis of extended exposure to acoustic trauma (loud noise) is considered by law to be a chronic organic disease of the nervous system. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Service connection may be granted for chronic diseases—even if diagnosed after discharge—when the evidence of record establishes that the disease was incurred in (began during) service. 38 C.F.R. § 3.303 (d). This means the evidence must demonstrate a combination of manifestations sufficient to identify the disease as well as sufficient observation to establish the disease’s chronicity at the time of the Veteran’s service. 38 C.F.R. § 3.303 (b). These findings are distinct from isolated findings or a disease diagnosis including the word "chronic" but without further detail and analysis. Id. Where a condition incurred during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after service is required to establish service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The theory of continuity of symptoms under 38 C.F.R. § 3.303 (b) only applies to the chronic conditions listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because tinnitus, as a chronic disease of the nervous system, falls within the scope of 38 C.F.R. § 3.309 (a), a showing of continuity of symptoms may be substituted for evidence otherwise required by 38 C.F.R. § 3.303. The Veteran reports that he has a current tinnitus diagnosis that is related to his noise exposure in Vietnam. He also reports that he has experienced symptoms related to his tinnitus diagnosis, specifically a ringing in his ears, since his active duty service. This is confirmed by his 2014 VA examination, which notes both his current diagnosis and the length of time during which he has reported experiencing symptoms (dating back to his time in service). Requisite noise exposure is further confirmed through the Veteran’s competent and credible statements that he experienced combat activity and was proximally located to loud noises including mortar and artillery fire when he drove large trucks as a part of convoys to deliver food to troops in the field approximately five times a week. In reviewing the Veteran’s service treatment records and reported history of noise exposure through military service, the VA examiner opined that “[t]he [cause] of the tinnitus [was] at least as likely as not associated with military noise exposure.” Tinnitus is a disability capable of lay observation (by the person experiencing it). The Board finds no reason to question the Veteran’s accounts that he has experienced ringing in his ears since serving in Vietnam. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Further, it finds the May 2014 VA examination opinion in support of the Veteran’s claim probative because it contains sufficient clinical findings and information regarding the history and features of the disability to constitute probative medical evidence adequate for establishing a service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). [CONTINUED ON NEXT PAGE] The Board concludes that medical evidence, as well as the Veteran’s competent and credible statements about his in-service experiences and his in-service and post-service symptoms, all support a finding that the Veteran’s tinnitus began in service and has persisted since that time. Accordingly, service connection for tinnitus loss is warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. B. Kucera, Associate Counsel