Citation Nr: 18144702 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-36 739 DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss is at least as likely as not related to in-service exposure to acoustic trauma. 2. Resolving reasonable doubt in the Veteran’s favor, tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to June 1968. The Veteran’s July 2016 VA Form 9 does not indicate whether the Veteran desires a hearing. The evidence of record permits the Board to issue a favorable decision on the merits without suffering prejudice. For these reasons, the Board will proceed with adjudication of the Veteran’s claims without seeking clarification regarding whether he desires to have a hearing. Service Connection 1. Entitlement to service connection for bilateral hearing loss Service connection will be presumed for certain chronic diseases, including bilateral hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Because there is no indication that the Veteran’s hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. Direct 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 military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 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. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran’s August 2015 VA audiological examination provides for a diagnosis of hearing loss. Pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 25 50 LEFT 20 20 15 55 55 Speech recognition ability using the Maryland CNC test is 92 percent in the right ear and 96 percent in the left ear. Because the Veteran’s pure tone thresholds in both ears are greater than 40 decibels at 4000 Hz, the evidence supports a current diagnosis of bilateral hearing loss. The second element is also satisfied. In his September 2015 notice of disagreement, the Veteran states that “while [he] was in the Army [he] was exposed to loud noises . . . without adequate hearing protection.” Consistent with this, in his July 2016 VA Form 9, the Veteran indicates that during his 13-month period of service in Korea he participated in daily target practice and was daily exposed to explosive devices but was never provided with hearing protection. By contrast, during his August 2015 VA audiological examination, the Veteran states that he has had no occupational or recreational noise exposure outside of his service in the Army. The nexus element is also satisfied. A June 2013 private medical record (received 9/22/15, page 3 of 22) notes “a spike in sensorineural hearing loss in both ears at 4000 Hz consistent with a ‘shooters notch.’” This hearing loss pattern refers to an increase in pure tone threshold values at 4000 Hz, which appears to be common in individuals who regularly use shoulder firearms without hearing protection. Given this medical record, the current diagnosis of hearing loss, the Veteran’s MOS of infantry, the Veteran’s testimony about near-continuous use of firearms without hearing protection during service, and the Veteran’s testimony that he has not been exposed to any occupational or recreational noise outside of service, the evidence supports the existence of a nexus between the Veteran’s current hearing loss disorder and service. The Board notes that an August 2015 VA medical opinion concludes that the Veteran’s hearing loss is less likely than not related to service. The basis of this opinion is that the Veteran had normal hearing before service, had normal hearing upon discharge, and that according to medical studies “hearing loss is evident directly after noise exposure.” However, the Board does not find that this opinion is any more persuasive than the June 2013 private medical record opinion. As the evidence is in equipoise, the Veteran is entitled to prevail with respect the existence of a nexus. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55–56 (1990). As all of the elements of service connection are satisfied, the Veteran is entitled to prevail with respect to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus Service connection may also be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An April 2015 private medical record (received 5/26/15) indicates the Veteran has “a long-standing history of tinnitus since he was in the military.” Consistent with this, during his August 2015 VA audiological examination the Veteran also indicates that his tinnitus began in service. The Veteran is considered to be competent to diagnose tinnitus and its onset on the basis of his own lay assertions. See Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that lay evidence is competent with regard to facts perceived through the use of the five senses). He argues that this disorder is the result of his near-continuous exposure to gunfire during service without hearing protection. Tinnitus is one of the chronic diseases under 38 C.F.R. § 3.307(a) for which service connection is available based on continuity of symptomatology. Therefore, based on the Veteran’s competent, credible evidence of in-service noise exposure, in-service tinnitus, and continuity of symptomatology, service connection for a tinnitus is warranted under 38 C.F.R. § 3.303(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel