Citation Nr: 18149815 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 17-02 964 DATE: November 13, 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 all doubt in the Veteran’s favor, the Veteran’s current bilateral hearing loss has been related to his active military service. 2. Resolving all doubt in the Veteran’s favor, the Veteran’s tinnitus was incurred during the Veteran’s active military service, and has continued to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1962 to October 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Service Connection To establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Hearing Loss and Tinnitus Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold 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 (2017). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, other organic diseases of the nervous system, which may include sensorineural hearing loss and tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. The Veteran, through his attorney, contends that his bilateral hearing loss and tinnitus are due to his continuous in-service high-level noise exposure (100 dB to 140 dB), consistent with his military occupational specialties (MOS) as an Air Compressor Operator and Construction Machine Operator, respectively. See, January 2017, VA Form 9. See, Veteran’s Personnel Military Record. See, Veteran’s May 2017 Statement in Support of Claim (SSOC). The Veteran further asserts that he did report experiencing “trouble” with his ears in 1965, prior to leaving the miliary, as noted in his medical records. See, January 2017 VA Form 9. See, Veteran’s Service Treatment Record. The Veteran was afforded a VA examination in October 2014 for his service connection claims for bilateral hearing loss and tinnitus. During that examination, the VA examiner diagnosed the Veteran with a sensorineural hearing bilateral hearing loss (in the frequency range of 500 – 4000 Hz), and in addition, tinnitus, which constitute disabilities for VA purposes. See, October 2014 VA examination; 38 C.F.R. 3.385. Hence, the Veteran has current disabilities of bilateral hearing loss and tinnitus. However, as to in-service occurrence, the VA examiner opined that the Veteran’s hearing loss is less likely as not (less than 50/50 probability) caused by or as a result of an in-service event. See, October 2014 VA examination. The VA examiner also opined that there is no in-service occurrence because the Veteran’s service treatment records upon exit, in October 1965, indicates that the Veteran’s hearing was identified as normal. See, October 2014 VA examination. Further, the VA examiner opined that delayed onset of noise induced hearing loss 20 to 30 years after such exposure cannot be scientifically attributed to the Veteran’s military service, citing to specific medical research study on Veterans. See, October 2014 VA examination. In addition, the VA examiner stated that there is no bilateral permanent threshold shift in the Veteran’s hearing, based on the Veteran’s exit exam. See, October 2014 VA examination. Even though the VA examination opined that the Veteran’s tinnitus disability is at least as likely (50 percent or greater probability) related to his hearing loss, the VA examiner did not render an opinion regarding whether the Veteran’s tinnitus disability is consistent with his noise exposure while in the military. See, October 2014 VA examination. Yet, the VA examiner does acknowledge a record of the Veteran’s statement that the circumstances of his tinnitus disability is longstanding. See, October 2014 VA examination. The Veteran further states that his symptoms of hearing loss and tinnitus has worsened over the years. See, May 2017 SSOC. In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the VA examiner formulated his “no causal relationship” opinion for the Veteran’s bilateral hearing loss to his military service, primarily based on the fact that there was no permanent in-service threshold shift present in his hearing from the time the Veteran entered and exited the military. See, October 2014 VA examination. However, it is the Veteran’s contention that the existence of a threshold shift cannot be accurately determined without comparing his audiological readings in his exit exam, to that of his entrance examination, which the Veteran was not afforded, as acknowledged by the VA examiner. See, October 2014 VA examination. See, January 2017 VA Form 9. See, Veteran’s Service Treatment Record. Given these facts, the Board finds the VA examiner’s rationale for his “no nexus” opinion to be inadequate, and has therefore assigned such opinion low probative value. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran (through his attorney) states that he was exposed to a very loud and noisy environment while he was in the military, and was never afforded ear protection. See, SSOC May 2017. He further asserts as proof, his Army Expert medal award as a Sharpshooter for Rifle M-14, as noted in his records. See, Veteran’s Personnel Miliary Record. See, October 2015 Notice of Disagreement. The RO has also conceded to the Veteran’s in-service noise exposure. See, January 2016 Statement of the Case (SOC). Therefore, the Board accepts the Veteran’s assertions of significant in-service noise exposure as consistent with the circumstances of his service. 38 U.S.C. § 1154(b). In weighing these facts, the Board finds that the most credible evidence of record establishes the in-service incurrence of an injury; in this case, the acoustic trauma. The Board further acknowledges that the Veteran is considered competent to report his symptoms of hearing loss and ringing of his ears, based on his own lay assertions, and the fact that these symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As the Board finds the Veteran competent and credible with respect to his observable symptoms of what in-service occurrences precipitated his continuing tinnitus and hearing loss and there is no evidence of a post-service source, the Board has assigned the Veteran’s statements high probative value. Therefore, notwithstanding the fact that there is no specific supporting nexus opinion, the Board finds that the evidence of continuity of symptoms for these chronic diseases of the nervous symptoms can substitute for that nexus evidence, and that the evidence of record is at least in equipoise regarding whether the Veteran’s current bilateral hearing loss and tinnitus were incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel