Citation Nr: 18148497 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-33 637 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. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to service. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 through June 1965. In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing in St. Petersburg, Florida. The transcript from the hearing has not yet been associated with the file, as the appeal is being granted under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, 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; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where a veteran claims service connection for a hearing impairment, whether he or she has a current disability is determined pursuant to 38 C.F.R. § 3.385. For purpose of VA benefits, 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. However, 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. 155, 159 (1993). Alternatively, VA regulations provide that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as an organic diseases of the nervous system), become manifest to a compensable degree within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1111, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. If the condition noted during service or within the presumptive period is not shown to be chronic, a showing of continuity of symptomatology after service is required to establish service connection. 38 C.F.R. § 3.303(b). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he contends originated in service. Specifically, he alleges his bilateral hearing loss was the result of the exposure to military noise while serving as an Electrical Power Production Specialists and Missile Launch Crew Member. The Veteran noted his work environment was typically in the 80 to 120 Decibel (dB) range due to diesel engines that ran continuously, as well as to various motors, pumps, alert horns, and pressure relief valves. The medical evidence of record, including a September 2013 VA examination, reflects the Veteran currently has bilateral sensorineural hearing loss. Further, the record confirms the Veteran’s military occupational specialty (MOS) was Electrical Power Production Specialist. The United States Air Force has conceded that such an MOS has a moderate probability of acoustic trauma, and as such, the Board finds in-service noise exposure has been established. Therefore, the central issue is whether a link exists between the Veteran’s current hearing loss and his in-service acoustic trauma. The Veteran underwent an independent medical examination in October 2018. On that occasion, the examiner opined the Veteran’s bilateral hearing loss was at least as likely as not caused by or a result of military noise exposure, notably, as result of his duties as a Missile Launch Crew Member. In support of this opinion, the examiner stated the onset of the Veteran’s bilateral hearing loss was gradual and not related to an inciting event. Further, the examiner noted the Veteran’ s family and past medical history were noncontributory to his hearing loss. Upon a review of the record and having resolved all reasonable doubt in favor of the Veteran, the Board finds all three elements of service connection are established by the competent and credible lay and medical evidence of record. The Board acknowledges a September 2013 VA examiner opined the Veteran’s current bilateral hearing loss was less likely than not caused or aggravated by his military noise exposure. In support of this conclusion, the examiner noted the STRs were silent for hearing loss complaints and lacked evidence of any acoustic trauma. Further, the examiner stated the Veteran’s enlistment audiogram revealed bilateral high-frequency hearing loss at 6000 Hz, with 50 dB hearing loss in the left ear and 45 dB hearing loss in the right ear. The examiner indicated the Veteran did not experience a “significant” threshold shift during active duty. In this regard, the Board notes the Veteran’s separation audiogram reflects -5 dB hearing loss at 6000 Hz in the left ear and 60 dB hearing loss in the right ear. Unfortunately, the examiner failed to explain what constituted a “significant” threshold shift, or why this was relevant to his determination. The Board finds the September 2013 VA examination report and opinion to be of limited probative value. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the examiner failed to acknowledge or discuss the Veteran’s lay reports in his medical opinion. Examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, an absence of contemporaneous service treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran’s currently diagnosed bilateral hearing loss and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, service connection is granted for the Veteran’s bilateral hearing loss. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he contends originated in service and continues to the present. Initially, the Board observes that tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the existence of tinnitus is generally determined by whether or not the Veteran claims to experience it. At his October 2018 hearing, the Veteran testified he had experienced tinnitus since service. The Veteran stated his tinnitus initially manifested as a low-level buzz. Further, the medical evidence of record reflects the Veteran began experiencing ringing in his ears approximately in January 2010 and was diagnosed with tinnitus in February 2010. The Board observes that lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Moreover, a layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). As the Veteran’s acoustic trauma has been conceded and his lay testimony of experiencing buzzing in the ears during and since service is credible, the Board, resolving all reasonable doubt in the Veteran’s favor, finds service connection is warranted for his tinnitus. The Board acknowledges the September 2013 VA examiner opined the Veteran’s tinnitus was less likely than not caused by or a result of his active military service. In support of this opinion, the examiner stated the STRs were silent for tinnitus complaints and lacked evidence of any acoustic trauma. Further, the examiner noted the Veteran was initially diagnosed and treated for tinnitus in February 2010, which was 45 years after his separation from service. The Board finds the September 2013 VA examination report and opinion to be of limited probative value, as the examiner disregarded the Veteran’s lay statements and based his opinion that there was no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In sum, the Board is satisfied that the evidence in favor of the Veteran’s claim is at least in equipoise with the evidence against his claim. Thus, service connection is granted for the Veteran’s tinnitus. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel