Citation Nr: 18153618 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-47 799 DATE: November 29, 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 Veteran’s bilateral hearing loss is related to service. 2. The Veteran’s tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the US Army from August 1966 to February 1970, with a period of in-country service in Vietnam. The Veteran also had a subsequent period of service with the Army Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which denied the benefits being sought. Service Connection Entitlement to service connection for bilateral hearing loss and tinnitus is granted Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2018). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2018); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent a VA examination in December 2011. He reported being exposed to aircraft noise in his duty as a pilot with the Army and Army Reserves. The examination revealed his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 30 55 65 LEFT 25 30 35 55 65 The average pure tone threshold was 45 decibels in the right ear and 46 decibels in the left ear. His word recognition score using the Maryland CNC test was 94 percent in both the right and the left ear. The examiner diagnosed severe high-frequency sensorineural hearing loss in the right ear and moderately-severe sensorineural hearing loss in the left ear. The Veteran underwent a second VA examination in June 2012 to determine whether his hearing loss was caused by his in-service otitis externa. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 60 45 LEFT 20 35 35 40 65 The average pure tone threshold was 49 decibels in the right ear and 35 decibels in the left ear. His word recognition score using the Maryland CNC test was 94 percent in both the right and the left ear. The examiner diagnosed mild to a moderately severe sensorineural hearing loss in the right ear and mild to a severe sensorineural hearing loss in the left ear. The Veteran’s bilateral hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385 (2018). Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. Tinnitus is a condition that is capable of lay observation, and the Veteran’s reports of ringing in his ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002). The first element of a service connection claim regarding tinnitus is also satisfied. The Veteran contends that his bilateral hearing loss and tinnitus were incurred in service and had continued since then. He denied any other occupational cause for his bilateral hearing loss and tinnitus. The Board finds that the Veteran was exposed to excessive noise in service. His DD-214 lists his military specialty as was an aviator. The Veteran in a July 2013 correspondence, credibly and competently states that he has flown 925 missions, many of which involve[d] machine gun and rocket fire, as well as, less often bombs dropped by aircraft. [Some] of the combat missions were flown in an OH-6A Cayuse [helicopter] that had a 600 round a minute ‘minigun’ mounted to the left side. Also [he was subjected to] constant radio static and engine whine while flying both in combat and while performing [his] stateside assignments. The Board also finds the Veteran’s statements regarding his in-service noise exposure consistent with his military specialty as an aviator, and the ringing in his ears to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied concerning both issues. Shedden, 381 F.3d at 1166-67. During his VA examinations, the examiners provided negative nexus opinions as to the Veteran’s bilateral hearing loss. At his December 2011 examination, the examiner cited as his rationale that the Veteran had normal hearing at the entrance to service and upon exit. Similarly, the December 2012 examiner recited the audiologist report stating that the Veteran’s hearing at the time of exit was within normal limit and he developed hearing loss after discharge from service. The Board finds the December 2011 VA audiological examiner’s rationale and the December 2012 reiteration of that same rationale, unpersuasive and assigns them both little probative value. Jones v. Shinseki, 23 Vet. App. 382 (2010). In arriving at the conclusions, the examiners relied on the Veteran’s lack of exhibited hearing loss in service. Moreover, neither examiner addressed the Veteran’s assertion of continuity of symptoms since active service, nor did they provide a reason for the Veteran’s sensorineural hearing loss. In support of his claim, the Veteran has provided the lay statement from his wife, B. B. O., who states that her “husband’s hearing has continuously deteriorated since the 1960’s. The volume on the TV has progressively gotten louder, and he complains of high pitch ringing in his ears. He has always contributed this to constant exposure to helicopter noise and ear infection after being shot down in Vietnam.” The probative evidence of record is void of any other concurrent causes for the Veteran’s current bilateral hearing loss and tinnitus. The Veteran has continuously stated that his bilateral hearing loss is a result of noise exposure in service and he has experienced the continuity of symptoms since then. Hearing loss is a chronic condition as outlined in 38 C.F.R. § 3.309 (a). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b) (2018); Walker, 708 F.3d 1331. Regarding tinnitus, both the June 2012 and December 2012 examiners noted that tinnitus is the result of the high-frequency hearing loss. Nonetheless, no nexus to service was provided. Cited as a rationale was that that the type of hearing loss that afflicts the Veteran is not a result of his otitis externa/ear infection in service. The Board finds that the negative nexus opinions unpersuasive and affords them low probative weight. They fail to address the Veteran’s lay contentions of experiencing tinnitus since service. The Veteran contends that his tinnitus began in service. Tinnitus is considered an “organic disease of the nervous system” under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran is competent to state that he experiences tinnitus and that it has persisted since service. Charles, 16 Vet. App. 370 (2002). The Board finds the Veteran and his wife’s lay statements regarding the onset and continuity of his bilateral hearing loss and tinnitus, to be both competent and credible. Thus, a grant based on the continuity of symptomatology is warranted for bilateral hearing loss and tinnitus. Accordingly, the Board finds that the evidence at minimum gives rise to reasonable doubt. Therefore, service connection for tinnitus and bilateral hearing loss must be granted. 38 U.S.C. § 5107 (b) (2018). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel