Citation Nr: 18143753 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-37 513 DATE: October 23, 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 evidence shows that the Veteran’s current bilateral hearing loss disability is related to his military service. 2. The evidence shows that the Veteran’s current tinnitus disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1981. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. For the 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, or 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 (2017). The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for a hearing loss disability. See Hensley v. Brown, 5 Vet. App. at 159 (1993).   The Veteran is competent to discuss observed physical symptoms, such as a whooshing or roaring noise in the ears. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (“ringing in the ears is capable of lay observation”). Tinnitus, moreover, is a disorder uniquely ascertainable by the senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, tinnitus is defined as a noise in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran in this case was afforded a VA examination of his hearing loss and tinnitus in November 2013. Speech audiometry revealed speech recognition ability of 100 percent bilaterally. However, on the authorized audiological evaluation pure tone thresholds (in decibels) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 50 70 LEFT 25 25 25 50 65   The Board finds this evidence shows the Veteran has a current bilateral hearing loss disability as the auditory thresholds in the frequencies of 3000 and 4000 Hertz is 40 decibels or greater. The Board also finds the Veteran’s statements about his current disability of tinnitus associated with his hearing loss to be compelling and credible evidence of a current disability as well. However, the VA examiner ultimately indicated it was not possible to render an opinion on whether the Veteran’s disabilities are related to service in part because the record does not contain an examination of the Veteran’s hearing at the time of the Veteran’s separation from active duty service. The Board finds the examiner’s opinion to be inadequate because it does not discuss important, relevant evidence including many hearing tests documented in the service treatment records. Notable evidence includes a January 1975 examination with hearing test results, several hearing tests in the late 1970s, and another examination in December 1980 just prior to the end of the Veteran’s active duty period. While the examinations show some expected variability in test results, the Board observes that a comparison of the January 1975 examination with the December 1980 examination reveals many positive threshold shifts including larger shifts at higher frequencies. Ultimately, the Board affords more weight to the Veteran’s reports of hearing loss and associated tinnitus following noise-exposure during service. See Veteran’s July 2016 letter (indicating he was subjected to loud and high-pitched noises including motor generators, high pressure air compressors, air conditioning units, diesel generators, and other noise of steam turbine engine rooms). The Veteran’s service treatment records support the Veteran’s contention that he was exposed to loud noises during service, and they also show some reports of treatment for congestion and ear symptoms. See, e.g., Veteran’s Certificate of Release or Discharge (indicating the Veteran served as a Submarine Nuclear Propulsion Plant Operator, Mechanical); service treatment records from July 1978 (noting the Veteran suffered from congestion and ear drainage). The Board considered the Veteran’s statements in the context of compelling evidence of positive threshold shifts particularly at higher frequencies, which is consistent with the progressive hearing loss at higher frequencies shown by the VA examination. Affording the Veteran the benefit of the doubt, entitlement to service connection for a bilateral hearing loss disability and associated tinnitus is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel