Citation Nr: 18145876 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-39 074 DATE: October 30, 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 Veteran currently has a bilateral hearing loss disability for VA compensation purposes. 2. The Veteran’s left ear hearing loss was noted at examination for entry into service. 3. The preexisting left ear hearing loss underwent an increase in disability due to noise exposure in service. 4. The Veteran’s right ear hearing loss is attributable to service. 5. The Veteran’s tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.306 (2017). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to April 1988. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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 may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While tinnitus is not specifically enumerated as a chronic disease under 38 C.F.R. § 3.309 (a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. However, tinnitus may be considered an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (finding tinnitus to be a chronic disease subject to applicable presumptions of 38 C.F.R. § 3.303(b) as to claims of chronicity at a minimum where there is evidence of acoustic trauma). Accordingly, service connection may be granted on a presumptive basis for tinnitus if it is shown to be manifest to a degree of 10 percent or more within one year following the Veteran’s separation from active military service. 38 C.F.R. §§ 3.307, 3.309(a). The same is true for bilateral hearing loss. Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) 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). 1. Tinnitus The Veteran contends that he has had ringing in his ears since military service. See October 2014 notice of disagreement (NOD). The first and second Shedden elements have been met. The Veteran has current tinnitus. See June 2013 VA examination report. Further, the Veteran’s military occupational specialties (MOS) were Systems Organizational Maintenance Technician, Turbofan Jet Engine First Degree mechanic/IMA Mechanic, and a Systems Organizational Maintenance Mechanic. See Forms DD-214. The Veteran reported that due to his military occupation, he worked around jet engine test cells and on aircraft carrier engine launches. Thus, the Board finds the Veteran was exposed to loud noise during service. As such, the crux of this case centers on whether the Veteran’s tinnitus is attributable to his time spent in service. At a July 2013 VA examination, a VA examiner opined that the Veteran’s tinnitus was less likely as not (less than 50 percent probability) caused by or a result of in-service noise exposure. The examiner stated service treatment records (STRs) are silent for tinnitus and upon current examination, he reported onset of tinnitus years after separation. See July 2013 VA examination report. In contrast, the Veteran and his former spouse have reported that he experienced ringing in his ears since his military service. See August 2016 VA Form 9 and August 2014 Buddy/Lay Statement. Significantly, the Veteran’s former spouse reported that she was married to the Veteran from May 1980 to October 1992, and during that period he complained about ringing in his ears. See August 2014 Buddy/Lay Statement. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted, including ringing in the ear. See Layno v. Brown, 6 Vet. App. 465, 469 (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 ringing in the ears, a finding that can only be determined by the Veteran’s reporting of the condition. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of reasonable doubt, and finds the evidence of record establishes the Veteran has experienced ringing in his ears since service. Accordingly, the Board finds that a grant of service connection is warranted for tinnitus. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Bilateral hearing Loss The Veteran filed an August 2012 claim for service connection for hearing loss. The Veteran reported that his current hearing loss is due his military work around jet engine test cells and on aircraft carrier engine launches. See August 2012 VA Form 21-526. Right Ear The first and second Shedden elements are met. The Veteran has a bilateral hearing loss disability for VA purposes. See July 2013 VA examination report. As noted above, the evidence shows in-service loud noise exposure. As such, the crux of this case centers on whether the Veteran’s right ear hearing loss was attributable to time spent in service. In service, the Veteran complained about bilateral hearing loss. A September 1987 STR report of medical history noted the Veteran had high frequency hearing loss while working on the flight line. Further, the Veteran’s former spouse reported that she was married to the Veteran from May 1980 to October 1992, and during that period he complained about hearing loss. See August 2014 Buddy/Lay Statement. The Board finds that the Veteran’s and his wife’s assertions are highly credible. The July 2013 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of in-service noise exposure. The examiner stated there was no permanent threshold shift evident in either ear in service. The examiner stated that his hearing was within normal limits per VA standards with no standard threshold shift evident at any frequency in either ear on his separation audiogram. However, the examiner did not discuss the September 1987 report of high frequency hearing loss on the flight light. Further, the examiner did not address the June 1984, February 1987, and September 1987 audiometric testing results, which showed threshold shifts in the right ear. As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of reasonable doubt, and finds there is evidence of record establishing a link between the Veteran’s noise exposure in service and his right ear hearing loss. Accordingly, the Board finds that a grant of service connection is warranted for right ear hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left Ear The Board finds that the Veteran’s left ear hearing loss disability preexisted service and was “noted” upon service entrance. The January 1981 service enlistment examination shows that the Veteran had left hearing loss for VA purposes. See January 1981 STR report of medical examination at enlistment. Audiometric readings showed: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 15 5 10 5 Left 0 5 0 10 50 These thresholds are demonstrative of left ear hearing loss disability prior to service that meets the requirement of hearing loss disability at 38 C.F.R. § 3.385; therefore, preexisting left ear hearing loss disability was “noted” upon entry into active service. 38 C.F.R. § 3.304(b); McKinney v. McDonald, 28 Vet. App. 15 (2016). As the left ear hearing loss disability was noted at service entrance, the presumption of soundness at entry into active service does not attach. See 38 U.S.C. § 1111. Because the Veteran’s preexisting left ear hearing loss disability was noted at the time of entry into service, service connection for left ear hearing loss may be granted only if it is shown that the left ear hearing loss disability worsened in severity beyond its natural progression during service (i.e., was aggravated by service). 38 U.S.C. § 1153; 38 C.F.R. § 3.306. After review of all the lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to whether the preexisting left ear hearing loss was aggravated by (worsened during) military service. As noted above, the evidence shows in-service loud noise exposure and a September 1987 report of medical history noted the Veteran had high frequency hearing loss while working on the flight line. The Board acknowledges that the July 2013 VA examiner opined that pre-existing hearing loss in the left ear was not aggravated in service. The examiner stated the January 1981 enlistment examination revealed pre-existing high frequency hearing loss in the left ear and there was no permanent threshold shift evident in either ear in service. The examiner stated that his hearing was within normal limits per VA standards with no standard threshold shift evident at any frequency in either ear on his separation audiogram. However, the Board notes that the examiner did not address the Veteran’s September 1987 report of medical history noting the Veteran had high frequency hearing loss while working on the flight line. Further, the VA examiner failed to address the Veteran’s June 1984, February 1987, and September 1987 audiometric testing results. Significantly, the Veteran’s February 1987 STR audiometric findings revealed left ear threshold shift in hearing from 50 (at service entrance) to 60: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 10 10 10 5 Left 5 15 5 20 60 The Board finds that the Veteran is competent to report symptoms of hearing loss and hearing worsening during service. These statements are credible because they are consistent with the evidence of record. The Board affords the Veteran the benefit of reasonable doubt, and finds that there is evidence of record establishing that the preexisting left ear hearing loss worsened during service. Accordingly, the Board finds that a grant of service connection is warranted for left ear hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel