Citation Nr: 18153692 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-39 974A DATE: November 28, 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 his in-service acoustic trauma. 2. The Veteran’s tinnitus is related to his in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1965 to November 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 38 U.S.C. § 1154(b) provides special rules for combat veterans discussed below. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his in-service exposure to acoustic trauma. 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Veteran has a current diagnosis of bilateral hearing loss. In addition, the Veteran’s military occupational specialty (MOS) in the Army was fuel and electrical system repairman, and he reported that he used and was around gunfire from 105 Howitzers and explosions, as well as loud car engines. The Board finds the Veteran competent and credible in his assertions of in-service noise exposure, and therefore exposure to in-service acoustic trauma is conceded. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Service treatment records (STRs) include auditory thresholds recorded at the time of enlistment and separation. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows and set apart in parentheses: Hertz 500 1000 2000 3000 4000 Add 15 10 10 10 5 STRs reflect an October 1965 enlistment report of medical examination with an audiogram showing pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT -5 (10) 0 (10) 0 (10) N/A 0 (5) LEFT -5 (10) -5 (5) 0 (10) N/A 5 (10) An October 1968 separation report of medical examination documents an audiogram showing pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 (15) 5 (15) 5 (15) N/A 5 (10) LEFT 0 (15) 0 (10) 0 (10) N/A 10 (15) In a June 2013 statement, the Veteran explained that during basic training he was exposed to two weeks of high power rifle noise with no ear protection. He was no further than six feet away from the rifles on both sides during day-long exercises. Prior to deployment to Vietnam, he re-qualified with the M-16 in the same circumstances. While in Vietnam, he was assigned to numerous details and had to spend nights in an artillery battery position firing 105 howitzers all night in support of the forward units. His assigned sleeping area during these firing missions was no further than 50 yards from the howitzers. His MOS was fuel and electrical systems technician, and mechanics frequently asked him to assist and troubleshoot vehicles that were not running properly. This meant being close to running engines so he could hear the sounds and try to pinpoint the problem. He reported that after each of these incidents his ears would be ringing for days. There was no hearing protection back then. After Vietnam, he was assigned as an instructor where had been trained. There were numerous engines for the students to practice what they had learned, and occasionally students would get the wires crossed and there would be an exhaust explosion what blew off the six-inch stack pipe with the noise and fireball echoing throughout the building. This happened every few weeks throughout the year that he was there until his discharge in November 1968. An August 2013 VA audiological examination reflects that the Veteran experienced decreased hearing in both ears. The pure tone audiometry test results were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 30 40 55 75 80 LEFT 30 40 45 65 70 The results of the speech discrimination score (Maryland CNC word list) were 92 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran’s hearing loss was less likely than not related to service because the Veteran’s hearing was within normal limits bilaterally on the separation examination and there were no shifts in hearing while serving in the military. Based on the evidence above, the Board finds that service connection for bilateral hearing loss is warranted. The audiometric scores on the August 2013 VA examination reflect that the Veteran has met the current disability requirement for hearing loss pursuant to 38 C.F.R. § 3.385. Moreover, the August 2013 VA examiner’s opinion is flawed because he relied, in part, on the lack of hearing loss diagnosis during service to reach his conclusion. The Court of Appeals for Veterans Claims (Court) in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s holding in Hensley is consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may 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. See id. The reliance on the absence of hearing loss in service lessens the probative weight of the medical opinion. In addition, the VA examiner stated that there were no threshold hearing shifts during service, but the Board notes that the Veteran’s hearing worsened slightly bilaterally and in all frequencies during service. Further, the examiner did not address the Veteran’s lay statements that he first started to experience bilateral hearing loss during service and that it worsened over the years. Thus, the Veteran’s competent and credible statements of in-service acoustic trauma and continuity of hearing loss symptomatology, and the STRs indicating a slight worsening bilaterally in hearing at separation, all weigh in favor of a nexus between the current bilateral hearing loss disability and the in-service acoustic trauma. The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that he has bilateral tinnitus related to in-service noise exposure. Specifically, the Veteran reported that he was exposed to noise from weapons, missiles, and running engines. In a June 2013 statement, the Veteran explained that his MOS was fuel and electrical systems technician, and mechanics frequently asked him to assist and troubleshoot vehicles that were not running properly. This meant being close to running engines so he could hear the sounds and try to pinpoint the problem. He reported that after each of these incidents his ears would be ringing for days. In an August 2013 VA examination report, the Veteran stated that he experienced recurrent bilateral tinnitus that sounded like “hissing to changing frequencies” with an onset of 1965 or 1966 while being near artillery fire. The examiner found that the Veteran’s tinnitus was less likely than not related to service because there was no shift in hearing during service, and no documentation of tinnitus in the claims file. At the outset, the Board finds that the evidence demonstrates that the Veteran has current tinnitus and that he was exposed to noise during service. As such, the Veteran meets the first and second elements of this service connection claim. See 38 C.F.R. § 3.303. Thus, the question is one of nexus. The Veteran has consistently asserted that he first experienced tinnitus during service and that it continued throughout his active service, particularly in Vietnam where he was exposed to noise from missiles and weapons fire, and had to be close running engines to fix them. The Veteran specifically stated that his ears would ring for several days after he fixed a running engine. The Board finds his assertions that he experienced tinnitus during service to be competent, and that there is no reason to question the veracity of the Veteran’s assertions in this regard. As such, the assertions are deemed credible. While the August 2013 VA examiner provided a negative nexus opinion, the Board notes that tinnitus is a disability that is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, given the nature of the disability, the Veteran’s lay statements are sufficient to establish that he has a current disability of tinnitus. Here, there are competent, credible, and probative lay assertions of the Veteran’s in-service noise exposure that are consistent with the circumstances of his service, as well as assertions that he began experiencing symptoms of tinnitus after noise exposure in service and that such symptoms have been recurrent to the present. Collectively, this evidence tends to establish that the elements of in-service injury, current disability, and nexus between the current disability and service required to establish service connection are met. Accordingly, service connection for tinnitus is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel