Citation Nr: 18152651 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-08 753A DATE: November 23, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s bilateral hearing loss is etiologically related to his period of active service. 2. The Veteran’s present tinnitus began during a period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Marine Corps from January 1959 until October 1962. This matter comes to the Board to Veterans’ Appeals (Board) on appeal from March 2013 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey. The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in August 2018. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Due to the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). A veteran is also competent to report exposure to hazardous noise, when symptoms of tinnitus first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994). Generally, for VA purposes, 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. See 38 C.F.R. § 3.385 (2018). In determining whether service connection is warranted for a disease or disability, VA must determine whether the evidence supports the claim, or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering all information and lay and medical evidence of record, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018). 1. Bilateral Hearing Loss The Veteran alleges that his bilateral hearing loss is due to in-service noise exposure. First, the Veteran has bilateral sensorineural hearing loss for VA purposes. See March 2013 VA examination report. Thus, the first element of service connection is met. Second, Board finds that there is an in-service event. The Veteran has competently testified regarding noise exposure during service. The Veteran’s DD 214 shows his military occupation specialty was metal worker and he was assigned to a tank battalion. His reports of noise exposure are consistent with his documented military activities. The Veteran described an incident where a tank fired close by, and it was so loud that it knocked him to the ground and he could not hear anything except the ringing in his ears. See February 2013 statement. He reported that the incident occurred when his company was on maneuvers in Japan, and he did not have access to medical facilities to have his ears fully evaluated. See August 2018 hearing testimony. The Veteran’s STRs do not contain any audiometric findings, and only note that the Veteran passed a whispered voice test at separation from service. Whispered voice tests are notoriously subjective, inaccurate, and insensitive to types of hearing loss and cannot be considered as reliable evidence that hearing loss was or was not present. Despite the lack of documented hearing loss in service, there is sufficient evidence regarding noise exposure, and he is competent to report his in-service hearing loss symptoms. Third, the Board finds that the current hearing loss is related to the in-service noise exposure. First, there is testimony regarding continuity of hearing loss symptoms since service. At a June 2014 VA audiology consultation, the Veteran reported that he first noticed diminished hearing in service, and that it gradually worsened over time until it became noticeably problematic in 2013. Because sensorineural hearing loss is a chronic disease, a showing of continuity of symptoms may support a nexus between service and diagnosed hearing loss. The Veteran underwent an VA audiology evaluation in March 2013, but the examiner was unable to provide an opinion on the etiology of the Veteran’s hearing loss without resort to mere speculation. Thus, the report is evidence that is neither for nor against the Veteran’s claim. Overall, the lay testimony supports a finding that it is at least as likely as not that hearing loss first began in service and persisted thereafter. Thus, the criteria for service connection for bilateral hearing loss are met. 2. Tinnitus The Veteran also asserts that his tinnitus first began in service and has persisted since that time. See April 2012 Claim. First, the Veteran is competent to report tinnitus and a diagnosis of tinnitus was confirmed by the March 2013 VA examiner. Thus, there is evidence of a current disability. Second, as explained above, the Veteran has consistently and competently reported that his tinnitus symptoms began in service. See February 2013 statement; April 2013 statement; June 2014 VA audiology note; August 2018 hearing testimony. Third, the Veteran has provided competent and credible lay testimony of symptoms during and since his period of service. See February 2013 statement; April 2013 statement; June 2014 VA audiology note; August 2018 hearing testimony. The 2013 VA examiner did not provide an opinion for or against the claim. Overall, the evidence demonstrates that the currently diagnosed tinnitus is began during the Veteran’s period of active service and service connection is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel