Citation Nr: 18145300 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 18-36 350 DATE: October 26, 2018 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for bilateral recurrent tinnitus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral sensorineural hearing loss is at least as likely as not related to an in-service injury, event, or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral recurrent tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for bilateral recurrent tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in U.S. Marine Corps from July 1945 to October 1946. This case comes to the Board on appeal from an October 2016 rating decision. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Sensorineural hearing loss and tinnitus (organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established for tinnitus and sensorineural hearing loss based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. 1110; 38 C.F.R. 3.307, 3.309(a). Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination as to whether the requirements for service connection are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Gilbert, 1 Vet. App. at 55. 1. Entitlement to service connection for bilateral sensorineural hearing loss In this instance, the Veteran has bilateral hearing loss for VA purposes. At the September 2016 audiological examination, audiometric testing yielded the following findings: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 85 100 105+ LEFT 45 60 95 105+ 105 Using the Maryland CNC Word list test, the Veteran’s speech recognition score was 28 percent in the right ear and 24 percent in the left ear. The above evidence establishes a current bilateral sensorineural hearing loss disability as defined under 38 C.F.R. § 3.385. Thus, the Veteran has satisfied the first element of service connection. The Board notes that the June 2015 audiological evaluation also showed hearing loss for VA purposes, but the examination was noted to be “not adequate for rating purposes.” Likewise, the Maryland CNC speech recognition test was not used for that examination. Therefore, the Board will rely solely on the September 2016 VA audiological examination. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran underwent a whisper test on induction and separation from service. See STRs. The results of the whisper tests were 15/15 bilaterally both at induction, July 1945, and separation, September 1946. However, the Veteran’s DD Form 214 and military personnel records reveal that the Veteran’s military occupational specialty (MOS) was as a mortar crewman. In his November 2016 NOD, the Veteran explained that he believes his hearing loss was caused by mortars that he fired during service without the use of hearing protection. He stated that he would put his finger tips in his hears, because most of the time he had to listen to the weapon as it fired to make sure that everything was working correctly for safety reasons. He continued that the weapons were very loud and not as muffled as today’s weapons. Based on the Veteran’s MOS and his statements, the Board finds that the Veteran was exposed to excessive combat noise during his time in service. The third element of service connection requires medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. In this regard, in the September 2016 examination, the VA audiologist could not provide an opinion without resorting to speculation. The audiologist stated that the only audiometric testing data in the Veteran’s STRs were whispered voice tests, dated July 1945 and September 1946. The results were “15/15” for both the right and left ear, suggesting normal hearing. The audiologist explained that the audiogram serves as objective evidence to confirm or to rebut the existence of noise injury, but whispered voice testing is historically insensitive to frequency specific hearing loss. He added that the Veteran reported excessive military noise in the form of rifle firing, yelling and equipment. However, the audiologist explained that there is no direct evidence to confirm/rebut hearing loss during the Veteran’s military tour. Adding that it would only be mere speculation to suggest the Veteran’s bilateral hearing loss was, or was not, caused by or a result of in-service acoustic trauma. In weighing the evidence of record, the Board finds that the evidence is in equipoise as to whether there is a causal link between the Veteran’s bilateral hearing loss and his active service. The VA examination is speculative and does not provide an opinion one way or the other on the cause of the Veteran’s bilateral hearing loss. Therefore, the Board, relying on the Veteran’s lay statements finds that it is at least as likely as not that his bilateral hearing loss was caused by in-service military noise exposure. Because the evidence is in equipoise, a grant of service connection for bilateral sensorineural hearing loss is warranted. 2. Entitlement to service connection for bilateral recurrent tinnitus Conversely, in the September 2016 examination, the VA audiologist opined that it is less likely than not that the Veteran experienced tinnitus because of an in-service event. The audiologist reasoned that the Veteran denied having reoccurring tinnitus for either ear. The Board notes that the Veteran is competent to report both the onset of his symptoms and a continuity of tinnitus symptoms to the present, as tinnitus is a disability that is eminently capable of observation by the person experiencing it, and generally is not capable of objective verification. See Charles v. Principi, 16 Vet. App. 370 (2002) (noting that, because tinnitus is “subjective,” its existence is generally determined by whether the Veteran claims to experience it); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Therefore, based on the Veteran’s denial of recurrent bilateral tinnitus, the Veteran does not have current diagnosis of recurrent bilateral tinnitus and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel