Citation Nr: 18156384 Decision Date: 12/10/18 Archive Date: 12/07/18 DOCKET NO. 15-30 408 DATE: December 10, 2018 ORDER 1. Service connection for a bilateral hearing loss disability is granted. 2. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Competent medical evidence establishes that the Veteran’s bilateral hearing loss disability was incurred in service. 2. The Veteran’s tinnitus is shown to have begun in service and persisted since. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1951 to January 1954. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision. Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) and tinnitus as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For the chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran’s military occupational specialty (MOS) was radio operator. In support of his reports of exposure to noise in service, he has indicated that in addition to being a radio operator, he was enrolled in an NCO training academy (where he was exposed to blasts of explosives); he has submitted photographs to corroborate such exposure. On February 1951 examination for enlistment the veteran’s ears were normal on evaluation. There was no audiometric testing at the time; whispered voice hearing was 15/15. He did not endorse having a history of hearing loss, and a “1” [normal] rating was assigned for hearing in his physical profile. His service treatment records (STRs) are silent regarding hearing loss of tinnitus. On January 1954 examination for discharge from service, there was no report of audiometry; whispered voice hearing was 15/15, bilaterally. On the examination report there was a notation indicating, “Poor hearing noted when he first came into army. Drums ok. Diagnosis mild nerve deafness.” [There was no explanation for the source of the notation of poor hearing on service entrance.] The Veteran was assigned a “3” [reflecting fairly severe impairment] for hearing in his physical profile. A report of a June 2013 private audiological examination notes that the Veteran reported hearing loss and tinnitus which began in service. The provider noted bilateral downsloping SNHL beginning above 1000 Hz, consistent with high levels of noise exposure. The provider opined that the Veteran’s hearing issues were caused by service. On January 2015 VA examination, puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 85 105 105 LEFT 20 50 95 105 105+ The right ear puretone threshold average was 83 decibels and the left ear puretone threshold average was 89 decibels. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 28 percent in the left. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss or tinnitus was related to service. The examiner explained that the Veteran’s entrance examination noted poor hearing on entrance, and observed that the Veteran’s radio operator MOS carried a low probability of exposure to acoustic trauma. 1. Service connection for a bilateral hearing loss disability. It is not in dispute that the Veteran has a bilateral hearing loss disability (it has been diagnosed by VA and private providers, and has been confirmed by official audiometry). There are conflicting medical opinions regarding the etiology of the bilateral hearing loss disability. In June 2013 a private provider opined that the bilateral hearing loss disability was likely related to service. The provider noted the Veteran’s reports of exposure to noise in service, and considered his postservice occupational, and family risk factors for developing hearing loss, and observed that the configuration of the Veteran’s hearing loss was consistent with hearing loss due to exposure to loud noise. The provider is a medical professional, and the opinion reflects familiarity with the record and includes rationale that cites to supporting data (the configuration of the hearing loss); the opinion is competent probative evidence in the matter. The opinion by the January 2015 VA examiner is based on an inaccurate factual premises (that the Veteran had a hearing loss at service entrance), does not account for the “3” profile for hearing on service separation, and in rejecting that the Veteran was exposed to noise in service does not account for his reports of exposure to explosives noise while attending an NCO academy in Austria. Therefore, is lacks probative value. Considering the foregoing, and resolving reasonable doubt in the Veteran’s favor (as required under 38 C.F.R. § 3.102), the Board finds that the overall record reasonably establishes that the Veteran’s bilateral hearing loss disability was incurred in service. Accordingly, service connection for a bilateral hearing loss disability is warranted. 2. Service connection for tinnitus. It is not in dispute that the Veteran has tinnitus. He reports he has experienced ringing in the ears. Unlike hearing loss disability, which for VA compensation purposes must be established by specific testing, the presence of tinnitus is established by self-reports of the person experiencing it; it is generally incapable of objective confirmation. In his initial reference to ringing in the ears in June 2013, the Veteran stated that it began in service and has continued since. A private provider has opined that the Veteran’s tinnitus is likely related to his service. The Board finds the opinion provided to be competent and probative evidence in this matter. The January 2015 VA examiner’s opinion is inadequate for rating purposes; like the opinion regarding hearing loss, it is based on inaccurate factual premises (that the veteran had hearing loss at service entrance, and that he was not exposed to noise in service). Even more significant is that the VA examiner does not acknowledge the Veteran’s report of onset of tinnitus in service. As tinnitus is a chronic disease listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity. As the presence of tinnitus is established by self-reports, continuity may established by a claimant’s self-reports of onset of tinnitus in service and continuity since (which can be rebutted by evidence indicating otherwise). Here, the Veteran has reported his tinnitus began in service, and the Board finds no basis for finding his reports are not credible. Accordingly, the Board finds that continuity of tinnitus is established. The requirements for establishing service connection are met. Service connection for tinnitus is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel