Citation Nr: 18155584 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-47 028 DATE: December 4, 2018 ORDER Service connection for right ear sensorineural hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable rating for left ear sensorineural hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s right ear sensorineural hearing loss is related to his excessive military noise exposure in service. 2. The Veteran’s tinnitus is related to his excessive military noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear sensorineural hearing loss are met. 38 U.S.C. §§ 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1966 to August 1970. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease 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; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) includes tinnitus. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case, as tinnitus is a chronic disease, and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 1. Service connection for right ear sensorineural hearing loss The Veteran asserts that his diagnosed sensorineural hearing loss is a result of his four years as a crew chief on jet aircraft without hearing protection. The Board observes that his DD 214 shows his military occupational specialty (MOS) was as an aircraft mechanic. Thus, excessive military noise exposure is conceded. On the authorized audiological evaluation in April 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 45 50 60 LEFT 10 15 40 55 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The VA examiner diagnosed the Veteran with sensorineural hearing loss in both ears. The examiner concluded that there was a permanent positive threshold shift in the right ear from the Veteran’s entrance physical examination to his separation physical examination. However, her rationale regarding the right ear stated, “entrance and separation audiograms show normal hearing with no significant positive threshold shift.” The Board notes that the Veteran’s separation examination showed a shift in both ears, the left worse than the right. Moreover, the examiner did not address the Veteran’s exposure to excessive military noise while serving in his MOS. The Veteran has submitted two positive nexus opinions from a private examiner. A July 2013 Audiology report provided a diagnosis of bilaterally symmetrical sensorineural hearing loss in the lower frequencies then progressing rapidly to a severe loss for the higher frequencies. A rational was provided wherein the audiologist noted the Veteran’s service in the Air Force as a crew chief on the flight line and his exposure to jet engine noise, and concluded that as a result of that environment, “there is a greater than 50% chance the noise he was exposed to caused the high freq. hearing loss.” A September 2016 letter from the same private clinical audiologist noted that the Veteran was evaluated on September 9, 2016, and was previously seen in July 2013, at which time he was diagnosed with sensorineural bilateral hearing loss. The audiologist concluded that, “Based on the patient’s case history and the audiometric testing shown, it is more likely than not that this hearing impairment in the mid to higher frequencies was caused by the significant noise exposure [the Veteran] experienced while serving his country.” The Board finds the private audiologist’s reports more probative than the VA examiner’s report as they provided a more thorough rationale based on the conceded military noise exposure. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran’s current right ear hearing loss is related to his service. Thus, all three elements of service connection are established by the competent, credible, and therefore probative, lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of right ear sensorineural hearing loss, military noise exposure is conceded, and the medical evidence shows a positive nexus linking his current right ear hearing loss to his time as a crew chief in the Air Force. Accordingly, service connection for right ear sensorineural hearing loss is warranted. 2. Service connection for tinnitus As an initial matter, the Board observes that tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran asserts that his tinnitus was incurred on active duty as a result of military noise exposure while serving in his MOS of aircraft crew chief, and that he has “constant ringing in my hearing [which was] not addressed in my VA exam.” Notice of Disagreement. He further stated in his Substantive Appeal that the VA examiner incorrectly noted that he denied having tinnitus. As noted above, military noise exposure has been conceded. The Veteran is competent to report tinnitus in the ears during service and since that time. Moreover, the Board finds that the Veteran’s reports of tinnitus from his time as a crew chief are credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the evidence of the continuity of tinnitus symptomology provides the nexus between the Veteran’s tinnitus with his active duty service. Furthermore, the Board finds that the evidence of continuity of symptomology is more probative than the VA examiner’s report, which incorrectly stated that the Veteran did not report recurrent tinnitus. Therefore, service connection for tinnitus is warranted. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for left ear sensorineural hearing loss is remanded. The Veteran seeks a higher rating than the currently assigned noncompensable rating for his left ear hearing loss. The Board notes that the current level of disability is most important in claims for an increased rating. Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the most recent VA examination for the Veteran’s hearing loss was over 4 years ago. Although age of an examination is not, in itself, an automatic reason for remand, the Board finds that a current examination is necessary to determine the severity of the Veteran’s current hearing loss. As such, the claim must be remanded. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   2. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel