Citation Nr: 18150972 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-15 141 DATE: November 19, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hearing loss is granted. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s tinnitus was a result of service or etiologically related to in-service noise exposure. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss was a result of service or etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1953 to October 1955. He died in February 2015. The appellant is the Veteran’s surviving spouse. At the time of the Veteran’s death, the hearing loss and tinnitus claims listed above were pending. Following the Veteran’s death, the appellant applied to be substituted as the claimant for purposes of processing the claims, and that status was granted by the Agency of Original Jurisdiction (AOJ). This matter comes before the Board of Veterans’ Appeals (Board) on appeal form a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, NJ. The Veteran timely filed an informal appeal in August 2010. The RO issued a Statement of the Case (SOC) reaffirming the claims denial in April 2012. The Veteran filed a timely substantive appeal in May 2012. The claim was remanded for a VA medical examination to ascertain the nature and etiology of the Veteran’s tinnitus and hearing loss in September 2014. In September 2018 the RO issued a Supplemental Statement of the Case (SSOC) again denying the tinnitus and hearing loss claims. In October 2018 the claim was returned to the Board for determination and advanced on docket pursuant to 38 C.F.R. § 20.900(c) (2007); 38 U.S.C. § 7107(a)(2) (2017). The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board Hearing in July 2014 to present testimony on the issues on appeal. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1) (2017); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of an "organic disease of the nervous system" to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Tinnitus and sensorineural hearing loss are organic diseases of the nervous system and is subject to presumptive service connection" under 38 C.F.R § 3.309(a) (2017). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 3. Entitlement to service connection for tinnitus The Appellant contends that the Veteran’s tinnitus was caused by noise exposure during his active duty service. A current disability at the time of the Veteran’s death is shown by the evidence of record. Tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Although the Veteran’s DD-214 does not indicate his military occupational specialty (MOS), the record evidences that the Veteran served in the Army’s Headquarters and Headquarters Company (HHC), 8th infantry division, from 1954 to 1955 during the Korean War and Peacetime. As such, the Board finds that the Veteran’s report of in-service noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C. § 1154(a) (2017). During his Board hearing, the Veteran testified that he complained of experiencing a buzzing in his ears at all times while in Korea, claimed that he was not able to sleep but got used to the buzz, which he claims had throughout service, and ever since. The Veteran testified that he experienced noise exposure in service and his tinnitus began in service. The Board finds that the Veteran is competent to describe constant hissing in his ears bilaterally, and his testimony is credible that tinnitus begun during his service in Korea and continued since. The statements tend to prove a fact, that is, he noticed that tinnitus begun in service. Moreover, the Board finds that not only is the Veteran’s report of experiencing tinnitus after in-service noise exposure credible, but that his lay evidence that his tinnitus continued after service is also credible. VA treatment records from January 2001 demonstrate that the Veteran reported having a long history of intermittent ear trouble. In April 2001 the during an audiogram examination the Veteran reported experiencing constant hissing bilaterally for many years. The Veteran’s competent and credible statements and testimony established the in-service incurrence of an injury, acoustic trauma in-service, resulting in tinnitus. The evidence of record establishes that at the time of his death, the Veteran had a current tinnitus disability. The evidence also establishes that his disability arose in-service after the noise exposure and continued ever since establishing continuity of symptomatology for the claimed enumerated chronic condition. 38 C.F.R § 3.309(a) (2017). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the Board finds that the Veteran’s lay statements are competent and credible with regard to noise exposure in-service and the onset of tinnitus in-service and since because nothing directly contradicts his assertions and he reported the claimed disability many years prior to submitting his claim for VA benefits. A veteran’s lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) (2017) (“Each disabling condition shown by a veteran’s service records, or for which he seeks a service connection[,] must be considered on the basis of... all pertinent medical and lay evidence.” See 38 U.S.C. § 1154 (a) (requiring VA to include in its service connection regulations that due consideration be given to “all pertinent medical and lay evidence”). No VA examiner has expressed any opinion as to the etiology of the Veteran’s tinnitus. The Veteran was afforded a VA audiological examination in August 2010; however, the he failed to report because he experienced cardiac health issues. (See Correspondence, September 2010). In September 2014, the Board remanded the claim for a VA medical opinion; unfortunately, the Veteran passed away before he could be scheduled for the VA examination. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Appellant’s favor, the evidence of record supports a finding that is at least as likely as not that the Veteran’s tinnitus was due to in-service noise exposure. Accordingly, the Board finds that grating service connection for tinnitus is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case 38 C.F.R. § 3.303(a) (2017). 4. Entitlement to service connection for hearing loss The Veteran has claimed that he has a bilateral hearing loss disability due to his active service. As discussed above, the Veteran attributed this loss to exposure to loud noises while performing his duties during the Korea Conflict Era. The Veteran’s most recent audiological examination, conducted by a VA audiologist in April 2001 reflects the following pure tone thresholds, in decibels: Hertz 500 1000 2000 3000 4000 RIGHT 20 35 45 60 65 LEFT 20 25 35 55 50 Speech recognition scores were reported as 88 percent discrimination for the right ear and 92 percent discrimination score for the left ear. However, the report does not specify if these are Maryland CNC Test compliant. Based on the above results showing an auditory threshold greater than 40 decibels at 4000 Hertz bilaterally, a current hearing loss disability for VA purposes is established. 38 C.F.R. § 3.385 (2017). The Veteran reported, and the Board has conceded that the Veteran was exposed to acoustic trauma in the course of his service in Korea. The Veteran’s service treatment records provide limited insight into the claimed condition, because the induction and separation examinations denote that the Veteran’s hearing was normal; however, these lack audiological examinations. Two service treatment records tend to corroborate the Veteran’s Board Hearing testimony that his hearing trouble started in service. A May 1954 treatment record shows the Veteran was prescribed ear drops for his ears. Similarly, a July 1954 record indicates the Veteran complained of hearing trouble, treatment records indicate wax was removed from the right ear, and the Veteran was advised to return if the trouble continued. The Veteran further reported that he sought medical treatment at the Brick VA Medical Center (VAMC) in close proximity to service separation, and averred to have received hearing loss treatment thereafter. However, the Veteran’s VA medical records from Brick VAMC, dated January 1956 to May 2001, are unavailable. Notwithstanding, the Veteran’s statements are consistent with his available treatment records, which document continuous hearing loss treatment: An April 2001 record shows the Veteran reported an audiological examination six months earlier and complained of worsening hearing loss and underwent an audiological consultation; in January 2006 the Veteran requested a re-evaluation of his hearing loss; February 2006 records show the Veteran underwent an audiological consultation, finding progressive hearing loss; September 2006 treatment records show the Veteran wearing hearing aids; records from December 2008 show the Veteran continued to complain of worsening hearing; February 2009 treatment records document a bilateral hearing loss disability; in April 2012 the Veteran reported hearing changes and decreased hearing sensitivity over the past five years. These symptoms existed during service, immediately following service, and have continued to present. The Veteran is competent to report these experiences as they have personal knowledge of the situations. There is no evidence that contradicts these reports and they are consistent with one another. Therefore, affording the Veteran the benefit of the doubt, a preponderance of the evidence indicates a continuity of symptomatology of hearing loss since the Veteran left active service. The Veteran did not undergo a VA hearing examination, as such, the record is lacks a medical etiology opinion. Nonetheless, the Board finds that the medical and lay evidence of record are adequate to evaluate and proceed with the adjudication of this claim without prejudice. The Board notes that the record lacks a medical opinion establishing that the Veteran’s hearing loss was related to his in-service acoustic trauma. However, the medical opinion deficiency is not sufficient to overcome the presumption of service connection afforded where the Veteran has a chronic disease and continuous symptomatology since leaving service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Here, the evidence of record establishes present bilateral hearing loss disability. In-service noise exposure is conceded. The Board finds that there is credible evidence of symptoms of hearing loss in service and continuity of symptoms since service. (Continued on the next page)   After resolving all reasonable doubt in the Appellant’s favor, the evidence of record support a finding that is at least as likely as not that the Veteran’s bilateral hearing loss was due to in-service noise exposure. Accordingly, the Board finds that granting service connection for bilateral hearing loss is the decision that is the most consistent with VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel