Citation Nr: 18148429 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-36 841 DATE: November 7, 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’s bilateral hearing loss is related to service. 2. The Veteran’s tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the US Air Force from August 1981 to August 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied the benefits being sought. 1. Entitlement to service connection for bilateral hearing loss and tinnitus is granted Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2017). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent a VA examination in March 2008. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 40 45 LEFT 5 5 5 20 50 The average pure tone threshold was 24 decibels in the right ear and 20 decibels in the left ear. His word recognition score using the Maryland CNC test was 94 percent in both the right and 94 in the left ear. The Veteran’s bilateral hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2017). Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. Tinnitus is a condition that is capable of lay observation, and the Veteran’s reports of ringing in his ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002). The first element of a service connection claim regarding tinnitus is also satisfied. The Veteran contends that his bilateral hearing loss and tinnitus were incurred in service and had continued since then. He offered no other concurrent cause for his bilateral hearing loss and tinnitus. The Board finds that the Veteran was exposed to excessive noise in service. His DD-214 lists his military specialty as was aircraft maintenance specialist. The Board also finds the Veteran’s statements regarding his in-service noise exposure from B-52 aircrafts is consistent with his MO and the ringing in his ears to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied concerning both issues. Shedden, 381 F.3d at 1166-67. At his November 2014 VA examination, the examiner provided a negative nexus opinion as to the Veteran’s bilateral hearing loss. He cited as his rationale that the “Veteran’s records show four audiologic examinations [and] testing at [the] entrance in February 1981 revealed normal hearing in the [bilateral] ear. Further testing in [June] 1982, [July] 1984 and [June] 1985 continued to show normal hearing in the [bilateral] ear with no significant threshold shifts observed between any testing. [The] Veteran’s MOS does carry a high probability rating for exposure to harmful military noise; however, the Veteran entered the military with normal left ear hearing and separated with normal left ear hearing without showing any significant threshold shifts to suggest cochlear changes.” The Board finds the November 2014 VA audiological examiner’s rationale unpersuasive and assigns little probative value to his negative nexus opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). In arriving at his conclusion, the examiner relied on the Veteran’s three in-service examinations, yet neglected to address the decibel changes at various Hertz levels reflected in the July 1984 audiology examination when compared to the June 1982 audiology examination. The Board notes that although the changes at the decibels levels are not reflective of hearing loss for VA purposes, they nonetheless should have been addressed. Moreover, the examiner did not address the Veteran’s assertion of continuity of symptoms since active service. In support of his claim, the Veteran has provided the audiological evaluation from his otolaryngologist, Dr. P. M. K., who acknowledged a review of the Veteran’s relevant information and conducted an ear, nose, and throat (ENT) physical examination. He reported that the Veteran had tinnitus and that the audiogram showed an asymmetric high-frequency sensorineural hearing loss, “likely related to noise exposure.” As there are no other concurrent causes of record for the Veteran’s bilateral hearing loss, the Board finds that the evaluation report by Dr. P. M. K. provides probative evidence in favor of the Veteran’s claims. The Veteran has continuously held that his bilateral hearing loss is a result of noise exposure in service and he has experienced the continuity of symptoms since then. Hearing loss is a chronic condition as outlined in 38 C.F.R. § 3.309 (a). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b) (2017); Walker, 708 F.3d 1331. Regarding tinnitus, the November 2014 VA examiner indicated that the Veteran’s “tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with [his] hearing loss, as tinnitus is known to be a symptom associated with hearing loss.” He, however, provided a negative nexus to service and cited as a rationale that “onset of the Veteran’s tinnitus was one year ago. [The] Veteran was released from active duty on [August] 1985. Tinnitus began approximately 29 years ago. Therefore, it is less likely than not that the Veteran’s tinnitus was caused/initiated by exposure to harmful military noise.” The Board finds that his negative nexus opinion unpersuasive and affords it low probative weight because it does not address the Veteran’s lay contentions. The Veteran contends that his tinnitus also began in service. Tinnitus is considered an “organic disease of the nervous system” under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to state that he experiences tinnitus and that it has persisted since service. Charles, 16 Vet. App. 370 (2002). The Board finds the Veteran’s lay statements regarding the onset and continuity of his bilateral hearing loss and tinnitus, to be both competent and credible. Thus, a grant based on the continuity of symptomatology is warranted for bilateral hearing loss and tinnitus. Accordingly, the Board finds that the evidence at minimum gives rise to reasonable doubt. Therefore, service connection for tinnitus and bilateral hearing loss must be granted. 38 U.S.C. § 5107 (b) (2017). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel