Citation Nr: 18152939 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-07 189 DATE: November 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and credible evidence of record is in equipoise as to whether currently diagnosed bilateral hearing loss disability was incurred during active service. 2. The competent and credible evidence of record is in equipoise as to whether currently diagnosed tinnitus was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2018, the Veteran presented testimony at Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be presumed for certain chronic diseases, including sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370 (2002). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran maintains that he has a current bilateral hearing loss disability and tinnitus, both of which are the direct result of noise exposure during active service. The Veteran specifically asserts that his hearing loss and tinnitus are the result of in-service exposure to traumatic noise during the performance of duties, working on aircraft while stationed in Okinawa. At a July 2018 Board hearing, the Veteran testified that he was exposed to traumatic noise while working close to operating plane and jet engines and as a tail gunner. The Veteran has been diagnosed with bilateral sensorineural hearing loss and tinnitus, as demonstrated by a VA audiological examination in April 2012. For the purposes of applying the laws administered by VA, 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. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). A review of audiograms performed during the pendency of the appeals period shows that the Veteran has a current bilateral hearing loss disability for VA purposes, as the Veteran had bilateral puretone threshold levels shown to be greater than 40 decibels in at least one frequency, and bilateral speech recognition scores on the Maryland CNC test of below 94 percent. In an April 2012 VA audiological examination, the Veteran demonstrated an auditory threshold of 40 decibels for the right ear and 60 decibels for the left ear at 4000 Hertz. 38 C.F.R. § 3.385. Therefore, the question to be decided is whether hearing loss disability and tinnitus are associated with the Veteran’s active duty. During an April 2012 VA examination, the Veteran reported having intermittent tinnitus for at least the last three years. During a July 2018 hearing, the Veteran reported having tinnitus since an incident during active service in which a B52 slid off the runaway and blew up. The Veteran stated that he complained of ringing in the ears after that experience but that the treating medical personnel did not record that complaint. The Veteran also contends that he did not know that tinnitus is a subjective disorder requiring complaints to a physician to be correctly diagnosed. The Veteran believed that if there was an abnormality that caused tinnitus, the audiometric testing would discover it. Thus, the Veteran is also contending that because he was not aware of the subjectivity of tinnitus testing, the absence of consistent tinnitus complaints in the record is due to his failure to report its presence, rather than the lack of its presence. The Veteran, as a lay person, is competent to report such observable manifestations such as ringing in his ears. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the record does show a current disability of tinnitus. With respect to whether the Veteran experienced an in-service disease or injury, the Board finds that the evidence of record is sufficient to establish service noise exposure or acoustic trauma. Specifically, the Board notes that the Veteran’s military occupational specialty was aircraft mechanic, working with aircraft and jets. During a July 2018 Board hearing, the Veteran noted that he worked next to active engines of jets with minimal ear protection for 12 to 14 hours a day for one year. Accordingly, the Board finds that those lay statements of noise exposure, corroborated by the Veteran’s confirmed duties during active service are credible and consistent with the circumstances of his service, and are sufficient to establish an in-service exposure to noise. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). With respect to whether there is a relationship between any current tinnitus and bilateral hearing loss disability and service, there is both positive and negative evidence in the record. In support of his claims, in addition to his own statements, the Veteran has submitted statements from his wife. In an April 2012 written statement, the Veteran’s wife stated that she had been married to the Veteran for 22 years and “always noticed you have to be right in front of [the Veteran] to get him to hear you.” She stated that they worked together in the early years and things needed to be repeated. As years progressed it worsened and he misheard words. When she was standing behind him, he heard nothing. She stated that, “I thought it was a husband/wife thing until the grandchildren started complaining about him not hearing them.” The wife submitted an additional statement in July 2018 stating that she and the Veteran had been married for 28 years and “he’s always complained of ringing in his ears and for the last 20 years, I’ve noticed he doesn’t hear a lot of things.” “Almost always we have to be facing each other at five feet apart for him to hear what I’m saying. It has gotten worse over the years.” In an April 2012 VA audiology examination, after reviewing the findings of the examination and the claims file, the examiner noted a negative finding with regard to any etiological relationship between hearing loss and tinnitus and service noise trauma. Specifically, the examiner’s conclusion was based on the fact that the service medical records were silent for any complaint or treatment for hearing loss or tinnitus during service, and that the separation audiology examination did not show any hearing loss at separation from active service. The examiner also cited a 2005 study from the Institute of Medicine entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus which found that there is “no scientific basis for delayed onset of hearing loss.” The examiner concluded that hearing loss and tinnitus were less likely than not due to active service. The Board in considering all the relevant medical evidence of record finds that the evidence is at least in equipoise with regard to whether hearing loss and tinnitus are related to active service. The Board assigns less persuasive value to the April 2012 VA opinion, as it did not address the Veteran’s lay assertions of onset and continuity, and based the negative opinion upon the absence of documented hearing loss upon separation. Service connection is not precluded for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Board also finds it significant that the April 2012 audiologist did not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. The examiner noted that the Veteran wore ear plugs and used ear muffs while working as a John Deere tester for 7.5 years and that he used double hearing protection when shooting at the range. The examiner based the negative opinion on the Veteran’s separation examination and provided no other possible etiology. Therefore, the April 2012 VA medical opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection. It is important to note that the Board may not rely on a medical opinion that rejects a Veteran’s lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing as that comes to him through his senses and requires only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to describe his in-service noise exposure and current difficulty hearing and ringing in his ears. The Board finds the Veteran and his wife’s lay statements to be competent, credible and assign the statements significant weight as such positively linking the Veteran’s current disabilities and his active service. After a review of the evidence of record as a whole, in light of the foregoing, the Board is satisfied that the Veteran’s current bilateral hearing loss disability and tinnitus cannot be disassociated from his in-service exposure to acoustic trauma. Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral hearing loss disability and tinnitus is warranted. Therefore, the claim for service connection for bilateral hearing loss and tinnitus must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk