Citation Nr: 18156736 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-35 091A DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his bilateral hearing loss is a result of acoustic trauma sustained during active service. 2. Resolving all doubt in favor of the Veteran, his tinnitus is a result of acoustic trauma sustained during active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to September 1969. In his October 2015 substantive appeal, the Veteran requested a hearing. In April 2018, the Veteran received notification that a videoconference hearing was scheduled for his appeal. However, the Veteran withdrew his hearing request in November 2018 correspondence. As such, the Veteran’s hearing request is considered to have been withdrawn. 38 C.F.R. § 20.704 (2018). The Board notes that the issue of entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) was previously on appeal. However, the Veteran withdrew this appeal in an August 2016 statement, before the issue was certified to the Board. As such, the appeal was properly withdrawn before certification and is not before the Board. Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, sensorineural hearing loss and arthritis are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a). Therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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 (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus are etiologically linked to the acoustic trauma that he experienced while in active service. He asserts that he was assigned as a forward observer for his artillery unit which exposed him to the acoustic trauma of mortar and gun fire. He further asserts that he has had continual hearing loss and tinnitus symptoms since his service discharge. His DD Form 214 confirms that his military occupational specialty was that of a cannoneer, or an artilleryman. His in-service exposure to acoustic trauma is thus conceded. The Veteran has consistently maintained that he first noticed loss of hearing acuity and ringing in the ears in service and that he has experienced the same symptoms from that time to present. Service treatment records are silent concerning any hearing loss or tinnitus symptoms or diagnoses. A November 2016 VA audiological examination report recorded pure tone thresholds for the Veteran’s right and left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 15, 20, 30, 30, and 40 on the right, and 20, 20, 30, 30, and 35 on the left. Speech recognition scores using the Maryland CNC Test for the right ear was 94 percent and the left ear was 96 percent. The examiner diagnosed bilateral hearing loss, but gave a negative etiological opinion that, as the Veteran had normal hearing upon discharge, it was less likely than not that his bilateral hearing was related to service. As rationale, the examiner stated peripheral hearing loss from noise exposure occurs at the time of exposure and that therefore it was less likely than not that the Veteran’s hearing loss was related to his military exposure. The examiner also opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss. Post-service medical treatment records are silent as to an etiological opinion regarding bilateral hearing loss or tinnitus. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss and tinnitus are the types of symptom that are readily amenable to lay observation as they are subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination report and correspondence of record note the Veteran’s continued reports detailing his hearing loss and tinnitus symptoms and his contention that he was exposed to sound in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, the Board finds the Veteran’s statements are credible and probative. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for bilateral hearing loss and tinnitus is warranted. The evidence shows a current diagnosis of hearing loss, which the Veteran has reported began during service and has continued from that time to the present. The evidence also records the Veteran’s continued assertions of experiencing tinnitus symptoms. With regard to the Veteran’s complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of bilateral hearing loss and that his tinnitus is likely a symptom associated with his hearing loss. The November 2016 VA examiner stated that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus are related to his service. However, the Board finds that this medical opinion does not give due consideration to the Veteran’s competent account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of noise exposure in service. Thus, the Board finds that the November 2016 VA examination has no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Despite the absence of a medical nexus opinion linking bilateral hearing loss and tinnitus to the Veteran’s in-service noise exposure, service connection may be granted based on continuity of symptomatology of a chronic disease, which includes sensorineural hearing loss, under 38 C.F.R. § 3.309(a). The record contains credible evidence of a continuity of bilateral hearing loss and tinnitus symptoms beginning in service and continuing thereafter. The Board has no reason to doubt the veracity of the Veteran regarding the onset of his bilateral hearing loss and tinnitus and the continuity of pertinent symptoms. Thus, the Board finds his competent and credible statements more persuasive than the examiner’s opinion. Based upon the Veteran’s noise exposure in service as well as his competent and credible reports of continuous hearing loss and tinnitus symptoms since service, the Board finds that his hearing loss and tinnitus is a result of his military service. With resolution of reasonable doubt in the Veteran’s favor, service connection for bilateral hearing loss and tinnitus is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel