Citation Nr: 18152745 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-26 254 DATE: November 26, 2018 ORDER Entitlement to service connection for bilateral tinnitus is granted. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the Veteran’s currently diagnosed tinnitus was incurred during active military service. 2. The Veteran’s hearing loss is manifested by audiometric examinations results no worse than level IV hearing in the right ear and level V hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral 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). 2. The criteria for entitlement to a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.118, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force (USAF) from November 1954 to September 1977. In an October 2015 rating decision, the Winston-Salem, North Carolina Regional Office (RO) denied the Veteran’s service connection claim for bilateral tinnitus and granted a 10 percent compensable rating for his bilateral hearing loss disability. In his December 2015 Notice of Disagreement (NOD), the Veteran contends that his hearing loss is more severe, and as such warrants a disability rating in excess of his current 10 percent. See, December 2015 NOD. The Veteran is also appealing the RO’s denial of service connection for his bilateral tinnitus claim. See, May 2017 VA Form 9. Unfortunately, the Veteran died in September 2018, pending his appeal before the Board of Veterans’ Appeal (Board). However, his eligible survivor spouse filed a request to be substituted as the appellant for purposes of processing the claim to completion, which has been approved. See, October 2018 VA Form 21-534EZ. See, November 2018 Appeals Process Request Letter. Hence, the Board continues to have jurisdiction to adjudicate this appeal. 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). Bilateral Tinnitus The Veteran contends that his bilateral tinnitus is due to his in-service noise exposure while he was in the USAF. 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 Veteran was afforded a VA examination in October 2015 for his for bilateral hearing loss and tinnitus claims. During that examination, the VA examiner diagnosed the Veteran with tinnitus, which constitutes a disability for VA purposes. See, October 2015 VA examination; 38 C.F.R. § 3.385. Hence, the Veteran has a current disability of tinnitus. However, as to in-service occurrence, the October 2015 VA examiner opined that the Veteran’s tinnitus is less likely as not (less than 50/50 probability) caused by or is a result of noise exposure while in the military. See, October 2015 VA examination. The VA examiner states that although the Veteran’s medical record indicates sporadic complaints of him experiencing ringing of the right ear, he notes that the Veteran was not diagnosed with tinnitus until 10 years later, and that he considers such sporadic occurrences to be normal, citing to supporting medical literature. See, October 2015 VA examination. The VA examiner further opines that the Veteran’s tinnitus diagnosis is not associated with the Veteran’s bilateral hearing loss diagnosis because the Veteran’s complaints of ringing of his ear was limited to his right ear. See, October 2015 VA examination. The Veteran strongly disagreed with this VA examiner’s October 2015 opinion, and provided a new, October 2017, private audiological examination record, which provided a contrasting medical nexus opinion. See, October 2017 Non-Government Medical Treatment Record. His private physician stated that although the Veteran was in an administrative position while in service, because the Veteran’s office was located next to “the flight line unit,” where the Veteran was continuously exposed to riveting plane engines, with no ear protection (as reported by the Veteran), then in his (private physician) medical opinion, it is more likely than not (more than 50 percent probability) that the Veteran’s current tinnitus disability was a result of his noise exposure while he was in service. See, October 2017 Non-Government Medical Treatment Record. 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 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). In the Veteran’s February 2016 correspondence attached to his Appeal to the Board, the Veteran states that from 1955 to 1956, while he was assigned to the “flight line” at the Langley, Virginia, Air Force Base (AFB), the Veteran was constantly exposed to jet engines that were “cranked up with gunpower,” whined and continuously gave off loud booms as part of the regular takeoff procedure. See, February 2016 correspondence from Veteran. See, May 2017 VA Form 9. The Veteran further explains that the office building where he worked was directly next to this location, and because there was no air conditioning unit, the windows had to stay open most of the time. See, May 2017 VA Form 9. In addition, the Veteran asserts that he was a Manifest Control Airman for 84 days in 1956, which is consistent with his military personnel record. See, February 2016 correspondence from Veteran. See, Veteran’s Military Personnel Record. Given these facts, 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). The Board further acknowledges that the Veteran is considered competent to report his symptoms of ringing of his ears, based on his own lay assertions. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 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. As the Board finds the Veteran competent and credible with respect to his observable symptoms of what in-service occurrences precipitated his tinnitus, the Board has assigned his statements high probative value. Further, the Board finds the Veteran’s October 2017 private physician opinion, which establishes a nexus between the Veteran’s military service and his current disability of tinnitus, also highly probative. On the other hand, the Board finds the October 2015 VA examiner’s rationale against finding a nexus between the Veteran’s tinnitus and his military service to be inadequate, and has therefore assigned that opinion low probative value. Consequently, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current tinnitus were incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for bilateral tinnitus is warranted. 38 U.S.C. § §1101, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined, the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). 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 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was granted service connection for his high frequency hearing loss under Diagnostic Code 6297 in October 1977, with a noncompensable rating. 38 C.F.R. § 4.85. The Veteran filed a claim for a compensable disability rating in March 2015, which was granted by the RO in October 2015, at a 10 percent disability rating, effective March 2015, the date of the Veteran’s claim. See, October 2015 Rating Decision. The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I, for essentially normal acuity, through numeric level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86, when an exceptional pattern of hearing loss is shown. The Veteran’s 10 percent disability rating for his bilateral hearing loss was based on his audiological examination conducted by the VA examiner in October 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 45 75 85 LEFT 25 30 50 80 85 The average decibel loss in the right ear was 60 and the average decibel in the left ear was 61.25. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 74 percent in the left ear. See, October 2015 VA examination. These audiological findings correspond to the Level IV hearing loss in the right ear, and Level V in the left ear. Under Table VII, a designation of Level IV and Level V hearing loss in the right ear (better ear) and left ear, respectively, yields a 10 percent disability rating. 38 C.F. R. §§ 4.85, 4.86, Diagnostic Code 6100. Higher evaluations are assigned for more severe hearing impairment, which based on these results, the Veteran is not entitled to. The Veteran provided an audiological examination conducted by a private physician in October 2017, to support the Veteran’s contention that his current hearing loss warrants more than a 10 percent disability rating. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 45 70 80 LEFT 35 45 40 80 88 As reported by the examiner, the average decibel loss in the right ear was 42 and the average decibel in the left ear was 38. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 84 percent in the left ear. See, October 2017 examination. These audiological findings correspond to Level III hearing in the right ear, and Level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of Level III hearing loss in the right ear and Level II in the left ear yields a 0 percent disability rating, which is in fact less than the Veteran’s current 10 percent disability rating. 38 C.F. R. §§ 4.85, 4.86, Diagnostic Code 6100. As such, the Veteran was also not entitled to a higher rating based on these private audiological results. The Board has also considered the statement submitted by the Veteran’s wife regarding the functional impact of his bilateral hearing disability on his daily life. See, December 2015 VA Form 21-4138. While the Board is sympathetic to the Veteran’s condition, lay testimony by itself is insufficient to determine the severity of hearing loss symptoms for compensation purposes, as compensation is determined by the mechanical application of Diagnostic Code 6100, as noted above. Accordingly, based on all of the above, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for service-connected hearing loss, and therefore entitlement to a rating in excess of 10 percent for his bilateral hearing loss is denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel