Citation Nr: 18146740 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-38 461 DATE: November 1, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDING OF FACT The Veteran’s bilateral hearing loss and tinnitus are causally related to his acoustic trauma in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969. 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. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Organic diseases of the nervous system such as sensorineural hearing loss and tinnitus will be presumed to have been incurred in or aggravated by service if such become manifest to a degree of 10 percent or more within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Hearing loss disability is defined by regulation. 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, 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. Service department audiometric readings prior to January 1, 1967 must be converted from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The United States Court of Appeals for Veterans Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 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. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§ 3.303(d). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, a July 2015 VA formal finding determined that the Veteran’s service treatment records (STRs) were unavailable and unfortunately appear to have been destroyed in the 1973 fire at the National Personnel Records Center (NPRC), which is a military records repository. In this circumstance, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing records concerning a Veteran’s service do not lower the threshold for an allowance of the claim. No presumption, either in favor of the claim or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). The legal standard for proving the claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). In October 2014, the Veteran submitted a copy of his 1969 separation examination; however, the audiometric examination was not legible. In August 2014, the Veteran stated that he noticed increased difficulty hearing certain sounds. Also, he heard ringing that others could not hear. The Veteran reported that his hearing acuity decreased during his training prior to his service in the Republic of Vietnam. He shot rifles, threw hand grenades, and fired tank cannons without the use of hearing protection. Also, in August 2014, the Veteran underwent a private audiological evaluation. The examiner noted sensorineural hearing loss bilaterally and occasional tinnitus and noted that the Veteran's noise exposure included military noise exposure and firefighting. In May 2015, the Veteran’s wife noted that the Veteran was unable to understand what she was saying or that he was unable to hear phones ring. Post-service, the Veteran was afforded a VA audiological examination in August 2015 which yielded a negative service connection opinion for hearing loss and tinnitus. The examiner reviewed the Veteran’s claims file. Audiological testing revealed sensorineural hearing loss bilaterally. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The hearing loss met the requirements of 38 C.F.R. § 3.385. The Veteran reported extensive noise exposure from rifles, artillery, mortars, and rockets when he served in the Republic of Vietnam. After his service, the Veteran worked as a firefighter and used hearing protection devices. The Veteran noticed a drastic drop in his hearing acuity in the previous two years. The Veteran reported that he experienced bilateral humming tinnitus weekly, which disrupted concentration. He reported tinnitus onset 5 years earlier. The examiner based his negative opinion due to the Veteran’s normal hearing at separation, his 30-year history of civilian noise exposure, and development of tinnitus and hearing loss after his active duty service. In October 2015, the Veteran’s brother noted that the Veteran’s hearing prior to service in the Republic of Vietnam was excellent as they could talk from opposite sides of the house. When the Veteran returned in 1969, the Veteran’s brother and other family members noticed that they had to repeat themselves often when talking to the Veteran or that the Veteran did not understand what was said. In January 2016, the Veteran noted that the August 2015 VA examiner did not record all that he said during his interview. The Veteran stated that he noticed a drastic drop in hearing acuity 2 years prior, but that he noticed his hearing was worse during his active duty service. The only time the Veteran did not use hearing protection during noisy activities was during his active duty service. Also, the Veteran noticed ringing in his ears during his active duty training. He reported that the ringing was drastically worse approximately 5 years earlier. After a careful review of the evidence of record, the Board finds that the Veteran has a hearing loss and tinnitus disability related to his military service. In making this determination, the Board notes that the Veteran’s assertions that he was exposed to acoustic trauma during his service and has experienced chronic hearing loss and tinnitus are found to be capable of lay observation, and thus his statements constitute competent evidence. The Court has held that, when a condition may be diagnosed by its unique and readily identifiable features, 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 (2007); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Veteran’s statements with respect to his hearing loss, tinnitus, and noise exposure are considered competent. The Board must now consider the credibility of such evidence. The Veteran has consistently submitted statements on medical records and written statements that he was exposed to acoustic trauma during service and did not have any significant noise exposure from recreational or occupational activities post-service as he wore hearing protection devices and that he has experienced hearing loss and tinnitus for many years. The Veteran’s lay statements with respect to his complaints of hearing loss and tinnitus are deemed credible and provide probative evidence of chronic symptomatology since service. See Savage v. Gober, 10 Vet. App. 488 (1997). Regarding the medical evidence of record, the opinion from the VA examiner does not have high probative value, as the examiner based the crux of her opinion that the hearing loss and tinnitus were not due to military service on the fact that the disabilities were not shown in service. However, the fact that hearing loss first manifested after service is not fatal to the service connection claim. As previously noted, a claimant may still establish service connection for a current hearing loss disability, even if the regulatory requirements for establishing a current disability are not met until after service. See Hensley, supra. Further, the Board finds the lay evidence in this case on the question of the onset and course of the Veteran’s hearing loss and tinnitus to be competent and credible, and to lessen the probative weight of the VA opinion. The private opinion examiner while noting the Veteran’s history of exposure to acoustic trauma in service and afterwards, did not express an opinion as to the cause of the Veteran’s hearing loss and tinnitus. (Continued on the next page)   Based on the foregoing, the Board finds that in view of the conceded exposure to acoustic trauma in service, and the statements from the Veteran and his brother regarding ongoing symptomatology of hearing loss and tinnitus since service and for many years, the Board finds that the evidence is relatively equally balanced in terms of whether he has hearing loss and tinnitus related to his military service, and will resolve this reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel