Citation Nr: 18143397 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 14-22 699 DATE: October 19, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran’s bilateral hearing loss disability was incurred in or is otherwise the result of his active service. 2. The Veteran’s tinnitus had its clinical onset during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from January 1964 through August 1964, with subsequent reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2016, the Board remanded the current issues for further evidentiary development. The Board subsequently sought a Veterans Health Administration (VHA) expert opinion in October 2016 and received a response in November 2016. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection The Veteran seeks service connection for bilateral hearing loss. Additionally, the Veteran seeks service connection for tinnitus, asserting that he first experienced tinnitus in service and has continued to experience it since that time. The Veteran contends that he was exposed to excessive noise in service as an artillery and helicopter mechanic. Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first 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). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease’ of the nervous system.” Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. 1. Service connection for bilateral hearing loss For 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; when the auditory thresholds for at least three of the above 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. However, “when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. The evidence establishes a current hearing loss disability. Specifically, during a July 2013 VA examination, audiometric testing revealed pure-tone thresholds of at least 40 decibels in each ear. Thus, a current hearing loss disability pursuant to 38 C.F.R. § 3.385 is established, and the question is whether such hearing loss disability is related to the Veteran’s service. The Veteran’s STRs do not include any reports, diagnosis, or treatment of hearing loss at any time during service. Initially, the Veteran’s audiometric examinations at entrance in October 1963 and separation in July 1964 are presumed to be reported in standards set forth by the American Standards Association (ASA). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO (International Organization for Standardization) units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz and 6000 Hertz. As noted below the ASA units are in parenthesis along with the converted ISO units. After conversion, the October 1963 entrance examination showed pure tone air conduction thresholds of 20 (5), 15 (5), 20 (10), and NT, and 15 (10) decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz (“relevant frequencies”), and 35 (20), 20 (10), 15 (5), NT, and 25 (20) in the left ear. As noted by “NT,” the examiner did not list values at 3000 Hertz. The July 1964 separation examination showed pure tone air conduction thresholds of 25 (10), 20 (10), 20 (10), NT, and 15 (10) decibels in the right ear at relevant frequencies, and 25 (10), 20 (10), 20 (10), NT, and 15 (10) in the left ear. As noted by “NT,” the examiner did not list values at 3000 Hertz. Service treatment records also include a July 1969 audiogram. The audiogram showed pure tone air conduction thresholds of 10, 10, 10, NT, and 15 decibels in the right ear at relevant frequencies and 10, 10, 10, NT, and 15 decibels in the left ear at the relevant frequencies. As noted by “NT,” the examiner did not list values at 3000 Hertz. In July 2013, the Veteran was afforded a VA examination. Audiological testing showed pure tone air conduction thresholds of 45, 50, 60, 65, and 65 decibels in the right ear at the relevant frequencies. Comparatively, for the left ear, audiological testing showed pure tone air conduction thresholds of 45, 40, 55, 60, and 65 decibels. The examiner reported a speech recognition score of 76 percent in the right ear and 64 percent in the left ear. The examiner opined that the Veteran’s current hearing loss is likely not related to service. The examiner explained that onset of hearing loss is gradual per Veteran. Citing a 2002 American College of Occupational and Environmental Medicine Position Statement on Noise-Induced Hearing Loss study, the examiner stated that hearing loss due to noise does not progress beyond age-related changes once the exposure to noise is discontinued. In March 2016, the Veteran was afforded a second VA audiological examination. In a March 2016 opinion and April 2016 addendum opinion, the examiner concluded that it less than likely that the veteran’s current hearing impairment is caused by or related to his military service. For support, the examiner cited to a 2006 Institute of Medicine study that found “a prolonged delay in the onset of noise-induced hearing loss was ‘unlikely.’” A November 2016 VHA medical specialist issued a medical opinion in agreement with the previous audiologists. The medical specialist found that the Veteran’s separation audiogram revealed normal hearing. Consequently, “there is no way to determine, in my opinion, that the underlying damage did exist but, if it did, it is reasonable it has had additive damage after the military.” He suggested that additional noise exposure or aging may be some of the “additive effects.” After review of the record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss. At the outset, as a hearing loss disability was not shown in service or for years thereafter, competent evidence of a nexus between the Veteran’s current hearing loss and service is required to substantiate the claim of entitlement to service connection. Here, the competent nexus evidence of record includes three medical opinions: July 2013, March 2016, and November 2016. Collectively, these opinions offer highly probative evidence as they reflect consideration of all relevant facts, and because the examiners provided adequate rationales for the conclusions reached. In particular, the November 2016 medical specialist noted that the Veteran’s hearing was within normal limits at the time of separation. Furthermore, the November 2016 medical specialist noted that medical literature does not support delayed-onset hearing loss. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Significantly, there is no competent medical opinion of record to the contrary. The Board acknowledges that the Veteran is competent to describe events that occurred during military service and his symptomatology regarding his perceived hearing loss. However, the Veteran is not shown to possess any medical or audiological expertise; thus, his opinion as to the etiology of his hearing loss does not constitute competent medical evidence and the Board finds the two VA audiologists’ and VA medical specialist’s opinions and the medical evidence of record to be significantly more probative than the Veteran’s lay assertions. See Jandreau, 492 F.3d at 1376-77. As such, the claim for service connection must be denied. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). 2. Service connection for bilateral tinnitus The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim, including the April 2012 Application Compensation or Pension. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. Though service treatment records are silent for complaints of tinnitus, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran stated in an April 2012 Veterans Application for Compensation or Pension that he “suffered” tinnitus as a consequence of his military occupational specialty of artillery and helicopter mechanic. He reported that “the ringing in my ears is constant and never goes away.” Thus, the Board finds the Veteran’s lay statements sufficient to establish in-service incurrence of tinnitus. The remaining question, then, is whether the Veteran’s current tinnitus is related to service. In this instance, the Board finds the claims filed that documented the Veteran’s reporting of tinnitus symptoms in service and his continued reports of tinnitus since separation from service are sufficient to establish service connection. See 38 C.F.R. § 3.309(a); Fountain, 27 Vet. App. at 271-72. However, the examiner did not consider the Veteran’s consistent reports of experiencing tinnitus in service. In so finding, it acknowledges that an April 2016 VA audiological examiner opined that the Veteran’s current tinnitus was not related to service. In any event, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements describing ringing in his ears within one year of separation and continued thereafter, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel