Citation Nr: 18147215 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-39 811 DATE: November 2, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability due to active service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus due to 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 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017); VA Training Letter 10-02. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1954 to December 1957. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) 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. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). By internal agency materials, the VA Secretary has made clear that sensorineural hearing loss is considered subject to 38 C.F.R. § 3.309(a) as an “[o]rganic disease[] of the nervous system.” Appendix at 10 (VA Training Letter 10-02). Fountain v. McDonald, 27 Vet. App. 258 (2015), added tinnitus as an “organic disease of the nervous system” to the list of disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). Because hearing loss and tinnitus has been found to be chronic diseases, the Board finds that the theory of continuity of symptomatology in service connection claims is applicable to this claim. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 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 hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, the Veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As a preliminary matter, the Board finds that entitlement to presumptive service connection for bilateral sensorineural hearing loss and tinnitus as chronic conditions under 38 C.F.R. § 3.309(a) is not shown by the evidence of record. There is no evidence suggesting that the Veteran experienced hearing loss or tinnitus to a compensable degree during the first year after discharge from service. The record does not reflect, nor does the Veteran otherwise contend, that he has been treated for hearing loss or tinnitus until many years after service. Because there is no evidence demonstrating that a compensable degree of hearing loss or tinnitus had manifested within one year of separation from service, the presumption of service connection for sensorineural hearing loss and tinnitus under 38 C.F.R. § 3.309(a) does not apply. Turning to direct service connection, the Veteran worked in the Naval Aviation branch as a flight simulator instructor during his service. He has provided ample lay testimony describing the flights he was required to take with students, the noise caused by the twin-engine planes, his lack of hearing protection during such flights, and the hearing loss he experienced directly following the flights. His wife has also stated that on days when he took the required flights, he would come home and be unable to hear her. The Veteran also stated that his chief noticed his struggles and eventually removed the required flights from his duties. The Board finds these statements to be competent and credible evidence and concedes the Veteran’s exposure to acoustic trauma in service. No audiograms were conducted during the Veteran’s active service. Only whisper tests were done at service entrance and separation indicating normal hearing. The Veteran has stated that he did not go to sick call or report hearing problems to clinicians in service, as he was young and did not realize that damage was being done to his hearing, he felt he should not complain, and it happened so frequently that he just learned to ignore it. The Veteran has testified that after service, he worked as a teacher. He noticed hearing problems in his position, frequently having to have students repeat themselves. His other post-service positions included school administration and director of athletics for a school district. He did not report acoustic trauma from these jobs, only describing being in loud gymnasiums during winter months. He also stated that his hearing worsened over time since service, and that buzzing or ringing had been intermittently present since the instructional flights in service. A September 2013 audiogram indicated bilateral hearing loss. The Veteran was prescribed VA hearing aids. In December 2013, the Veteran underwent a VA audiological examination. Acoustic testing revealed sensorineural hearing loss in the frequency range of 500 to 4000 Hertz bilaterally. The examiner determined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of service, noting that his enlistment and separation examinations had no audiometric information, but the Veteran’s position as an instructor meant he had no evidence of noise exposure in service. She further found that his tinnitus was not related to service because hearing loss was not shown to have started in service. The clinical results of the audiological examinations demonstrate that the Veteran has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The evidence also demonstrates a present disability of tinnitus; thus, the first requirement for the establishment of service connection is established for both claims. See Shedden v. Principi, 381 F.3d at 1166-67 (Fed. Cir. 2004). Although there is no positive opinion of record, the Veteran has conceded noise exposure, a currently diagnosed bilateral hearing loss disability for VA benefit purposes, little civilian noise exposure, and there is competent and credible testimony indicating ongoing hearing problems since service. As such, all reasonable doubt is resolved in the Veteran’s favor, and service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the tinnitus claim, a lay person is competent to describe his symptoms of ringing in the ears throughout the years. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Further, the Board finds that the Veteran’s account of buzzing and ringing in his ears from service to the present to be credible. As the VA examiner did not find that the Veteran had acoustic trauma from noise exposure in service, and such exposure is conceded, it is less probative evidence. As such, the most probative evidence of record regarding a connection to military service must be the lay statements of the Veteran, who has contended that he experienced buzzing and ringing in the ears during service until the present. Resolving all doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel