Citation Nr: 18148107 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-38 974 DATE: November 6, 2018 ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus as secondary to the now service-connected hearing loss disability is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s hearing loss is, at least in part, related to in-service noise exposure. 2. The Veteran’s tinnitus is secondary to his now service-connected hearing loss dibsiality. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 as secondary to the now service-connected hearing loss dibsiality have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1970 to June 1972. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 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). Establishing service connection generally requires evidence of (1) a current disability; (2) 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). 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. Tinnitus and hearing loss (organic diseases of the nervous system) are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id. Service connection may also be established for tinnitus and 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). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hearing Loss Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss disability, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that service connection for a bilateral hearing loss disability is warranted because it was caused by his in-service exposure to acoustic trauma. The Veteran has a current bilateral hearing loss disability for VA purposes, as documented in April 2016 and November 2016 VA audiological examination reports. Accordingly, the first element of service connection is met. The Board next finds that the Veteran was exposed to in-service acoustic trauma. The Veteran’s Certificate of Release or Discharge from Active Duty (DD-214) indicates that while in the Air Force, the Veteran’s military occupational specialty (MOS) was 13A01 or field artillery, basic. An October 2015 private medical record reflects that the Veteran reported exposure to noise in the form of explosives, gunfire, and machine noise and that he was not sure if he was provided hearing protection while in the military. In a December 2015 statement, the Veteran reported that he was in artillery and exposed to Howitzers (105’s and 9 inch) on a daily basis with little to no hearing protection. The Veteran indicated during the April 2016 and November 2016 VA examinations that he was in the artillery but did not serve in Vietnam. In a February 2017 notice of disagreement, the Veteran indicated that in 1970 he was in the artillery field and was around a lot of noise. There is ample indication that he was exposed to acoustic trauma in service due to his MOS in the Air Force. In light of the above, the Board finds that the Veteran was exposed to hazardous noise during his service. Upon review of the evidence of record, the Board finds that the evdicne is at least in equipoise as to whether the Veteran’s hearing loss dibsiality is, at least in part, related to service. The Veteran’s February 1972 Report of Medical Examination at separation reflects a normal clinical evaluation of “ears – general.” The Veteran also wrote, “I am in good health,” and it is noted that the health records were screened with no significant findings. Furthermore, the Veteran was assigned a “1” rating assessing hearing under the PULHES profile system, indicating that the Veteran’s hearing was in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Service treatment records are also silent for any complaints of hearing issues. The Veteran first complained of bilateral hearing loss over 40 years after service, in an October 2015 private medical record. However, at that time, the Veteran reported a long history of hearing loss and a history of significant noise exposure during military service. Weighing against the claim are April 2016 and November 2016 VA examination reports where the examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not caused by or a result an event in military service. The examiner provided the rationale that hearing thresholds documented at the time of military separation were within normal limits at both ears. Further, the examiner explained that ear-related problems were denied at the time of military separation and there is no documentation to support the conclusion that hearing loss is attributable to active military service, nor evidence of chronicity or continuity of care regarding hearing loss during the over 40-year period since military separation. The examiners also noted that the Veteran had a positive civilian occupational history for noise exposure with a 44-year history of long-haul truck driving. Weighing in favor of the claim is an October 2015 medical opinion from the Veteran’s private Ear, Nose, and Throat (ENT) medical provider. The ENT opined that it is more likely than not that at least some of the Veteran’s hearing loss is related to noise exposure while serving in the military, specifically that it has a 50 percent or greater probability to have been caused by the claimed in-service injury. The ENT indicated that it was impossible to determine how much of the Veteran’s hearing loss was related to military noise verses noise exposure he has had elsewhere. The October 2015 private medical record reflects that the Veteran had other noise exposure since serving in the military in the form of firearms and work-related noise. Upon review of all the evidence of record, the Board finds that there is evidence weighing both for and against the claim for service connection for hearing loss. In sum, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran’s hearing loss disability is, at least in part, related to service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for hearing loss have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Tinnitus The Veteran contends that service connection for tinnitus is warranted because it was caused by his in-service exposure to noise hazards. The Veteran has tinnitus or ringing in the ears, as documented in the April 2016 and November 2016 VA examination reports. There is no medical test for tinnitus; thus, evidence of tinnitus symptoms is highly subjective. Tinnitus is a condition capable of lay observation and diagnosis; therefore, the Veteran is competent to report that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Accordingly, the first element of service connection is met. As discussed previously, there is ample indication that he was exposed to acoustic trauma in service due to his MOS in the Army. The Board finds that the Veteran was exposed to hazardous noise during his service. The October 2015 private medical record reflects the Veteran’s reports of immediate hearing loss as well as tinnitus following exposure to loud noise while serving in the military. The private ENT provider indicated that the Veteran has had tinnitus associated with bilateral hearing loss. The April 2016 and November 2016 VA examiner opined that the Veteran had a diagnosis of hearing loss and that his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. There are no contradictory opinions of record. As such, the Board finds that the preponderance of the evidence weighs in favor of the Veteran’s claim that tinnitus is secondary to his now service-connected bilateral hearing loss disability. For these reasons, service connection for tinnitus is warranted. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel