Citation Nr: 18152572 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-54 220 DATE: November 23, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, the Veteran’s bilateral hearing loss disability is related to service. 2. Resolving doubt in the Veteran’s favor, the Veteran’s tinnitus is related to service. CONCLUSIONS OF LAW 1. The Veteran’s bilateral hearing loss disability was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The Veteran’s tinnitus was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to September 1985. These matters came before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including organic disease of the nervous system which includes sensorineural hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). For VA purposes, impaired hearing will be considered 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. The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has described onset of his hearing loss and tinnitus due to noise exposure during active service, to include as from performing his duties as an aviation structural mechanic which involved working with aircraft and jet engines. See, e.g., the Veteran’s VA Form 9 dated October 2016; see also a January 2015 VA Disability Benefits Questionnaire (DBQ) report. With regard to a current disability, the Veteran was provided a VA audiological examination in November 2015. With respect to the Veteran’s left ear, the audiological evaluation revealed puretone threshold testing of 45 dB at 4000 Hz. As such, the Veteran met the regulation criteria for a left ear hearing loss disability under 38 C.F.R. § 3.385. With respect to the right ear, the VA examination did not document a hearing loss disability under 38 C.F.R. § 3.385. Specifically, there were no findings of auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater; auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech recognition score using the Maryland CNC Test less than 94 percent. However, a VA DBQ report dated January 2015 which was completed by Dr. M.G. documented a right ear hearing loss disability under 38 C.F.R. § 3.385. In particular, puretone thresholds at 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz were above 26 dB. In light of these circumstances, the Board resolves the benefit of the doubt in the Veteran’s favor and finds that he has a right ear hearing loss disability under 38 C.F.R. § 3.385. The Board also notes that the Veteran has competently and credibly reported tinnitus and that tinnitus was documented by both the November 2015 VA examiner and Dr. M.G. in January 2015. With regard to in-service disease or injury, the Veteran’s service treatment records are absent complaints of or treatment for hearing loss or tinnitus. However, service records show the Veteran’s military occupational specialty (MOS) was an aviation structural mechanic. Therefore, his reports of in-service noise exposure are consistent with his duties. On enlistment examination in January 1981, puretone thresholds were recorded as: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 10 LEFT 10 20 15 10 30 The Board notes an audiological examination dated May 1985 prior to the Veteran’s separation from service revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 5 LEFT 0 15 0 0 25 The Board observes that there are conflicting medical opinions of record as to whether the Veteran’s current bilateral hearing loss disability and tinnitus are related to service. Specifically, the Veteran was provided a VA examination in November 2015. After examination of the Veteran and consideration of his medical history, to include the Veteran’s in-service noise exposure, the VA examiner concluded that it is less likely than not that the Veteran’s hearing loss disability was caused by or a result of service. The VA examiner’s rationale for their conclusion was based on their finding of hearing within normal limits upon enlistment and separation with significant threshold shifts. The VA examiner further opined that the Veteran’s tinnitus is associated with the hearing loss as tinnitus is a symptom known to be associated with hearing loss. The examiner did not indicate that the Veteran’s tinnitus is related to service. However, this negative nexus opinion by the November 2015 VA examiner has limited probative value to the extent it was based upon improper findings and lack of consideration of all the evidence of record. First, this examiner based a negative conclusion upon the improper finding that the Veteran did not have a hearing loss disability by separation, referring to in-service audiometric evaluation at separation examination. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (Court held that hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently); and Hensley v. Brown, 5 Vet. App. 155 (1993) (where the Court held that, even though disabling hearing loss may not be demonstrated at separation, a Veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service). Second, it appears that these examiner’s negative opinion failed to consider the competent statements by the Veteran of in-service acoustic trauma and subsequent continuity of hearing loss symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection). Indeed, the VA examiner’s negative medical opinion did not give due consideration to the Veteran’s competent and credible account of acoustic trauma (injury to the ears) or to hearing loss symptomatology since service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (expressly rejected the view that “competent medical evidence is required...[when] the determinative issue involves either medical etiology or a medical diagnosis.”). In contrast to the negative VA opinion, the Veteran submitted a VA DBQ dated January 2015 which was completed by Dr. M.G. After examination of the Veteran and consideration of his medical history, Dr. M.G. concluded that it is at least as likely as not that the Veteran’s bilateral hearing loss disability and tinnitus are caused by or a result of service. Dr. M.G. noted, in the tinnitus section, the Veteran’s significant in-service noise exposure from jet aircraft, such that Dr. M.G. appears to have indicated that both the Veteran’s bilateral hearing loss disability and tinnitus are related to the in-service noise exposure. Given both positive and negative nexus opinions as to whether the Veteran’s current bilateral hearing loss disability and tinnitus are related to service, the Board resolves all reasonable doubt in favor of the Veteran and finds that the evidence is at least in equipoise. As such, service connection for the Veteran’s bilateral hearing loss disability and tinnitus is warranted. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel