Citation Nr: 18158658 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 09-11 434A DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s bilateral hearing loss and tinnitus were incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1962 to August 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The claim for service connection for left ear hearing loss has been expanded as set forth above based on the evidence of record suggesting that the Veteran has bilateral hearing loss that is etiologically related to his service and the Veteran’s March 2013 statement in support of claim that asks to amend his claim for service connection to bilateral hearing loss. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994) (standing for the proposition that the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board’s decision). The adjudication of the claim for service connection for bilateral hearing loss is set forth in the decision below. 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 (b), (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 list of chronic diseases in 38 C.F.R. § 3.309 (a) includes arthritis or DDD. 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 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. The Veteran asserts that his bilateral hearing loss and tinnitus are both the direct result of noise exposure during active service. He asserts that he developed bilateral hearing loss and tinnitus during his active service as a result of his military noise exposure when he served as an aviation supply and ordnanceman on the flight line in the Navy. The Veteran has been diagnosed with mild bilateral sensorineural hearing loss and bilateral tinnitus on VA examination. See August 2007 VA Examination Report. The audiogram performed in conjunction with this VA examination report confirms that the Veteran has a current mild bilateral hearing loss disability for VA purposes, as the Veteran has three frequencies higher than 26 decibels in both ears. See 38 C.F.R. § 3.385 (2015) (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, 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.); Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board acknowledges that there is a negative etiological opinion of record in the form of the August 2007 VA audiological examination report; however, the Board declines to accept this opinion, as it is based on the inaccurate factual premise that the Veteran’s in-service audiograms reflected normal hearing bilaterally. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.). The Veteran’s in-service audiograms are dated prior to December 31, 1970, and in light of the handwritten note indicating that the results of the audiogram are reported in American Standards Association (ASA) units, it must be converted from ASA to International Standards Organization (ISO)-American National Standards Institute (ANSI). This means adding to the reported findings 15 decibels at the 500 dB level, 10 decibels at the 1000, 2000, and 3000 dB levels, and 5 decibels at the 4000 dB level. However, the VA examiner failed to convert the Veteran’s in-service audiogram results making his opinion based on inaccurate information. Additionally, the examiner failed to adequately address the Veteran’s lay assertions of onset and continuity of symptomatology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). Therefore, the August 2007 VA medical opinion cannot form the basis for a denial of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran’s service treatment records (STRs) show that an audiogram in September 1964 manifested the puretone thresholds, in decibels (dB), of 10 dB at 500 (Hz), 15 dB at 1000 Hz, 5 dB at 2000 Hz, and 25 dB at 4000 Hz in his left ear. The puretone thresholds for the right ear in September 1964 manifested the puretone thresholds, of 20 dB at 500 Hz, 15 dB at 1000 Hz, 25 dB at 2000 Hz, and 25 dB at 4000 Hz. However, after converting the September 1964 audiogram from ASA to ISO the September 1964 audiogram reflects puretone thresholds of 25 dB at 500 Hertz (Hz), 20 dB at 1000 Hz, 15 dB at 2000 Hz, and 30 dB at 4000 Hz in the left ear. As converted, the right ear reflects puretone thresholds, in decibels (dB), of 35 dB at 500 Hertz (Hz), 25 dB at 1000 Hz, 30 dB at 2000 Hz, and 30 dB at 4000 Hz. When converted the Veterans service treatment records reflect at least “some degree of hearing loss” in September 1964. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss). Therefore, the elevated puretone thresholds evident in the September 1964 audiogram tend to support the Veteran’s competent assertion of experiencing auditory symptoms during and since his claimed in-service acoustic trauma. The Board thus finds the Veteran’s statements concerning his in-service exposure to acoustic trauma and resultant in-service auditory symptomatology to be credible, as they are consistent with the evidence of record and the circumstances of his service. See 38 U.S.C. § 1154 (a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the Veteran has asserted in statements and testimony adduced throughout the pendency of the claim that he experienced a continued progression of auditory symptoms, including specifically decreased hearing acuity and tinnitus, since his separation from active service. See Hensley, 5 Vet. App. at 159-160 (holding that, when audiometric test results do not meet the regularity requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). In this regard, the Veteran is competent to report experiencing auditory symptomatology since his active service, as symptoms such as decreased hearing acuity and tinnitus are certainly conditions with “unique and readily identifiable features” that are “capable of lay observation.” Jandreau, 492 F. 3d at 1376-77. Additionally, as noted, the Veteran is credible in his report of suffering auditory symptomatology during service. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). This credible report of a continuity of symptomatology suggests a link between his current bilateral hearing loss and service. See Duenas v. Principi, 18 Vet. App. 512 (2004). In sum, the Veteran has a current ratable bilateral hearing loss as defined by 38 C.F.R. § 3.385. Moreover, he has competently and credibly described suffering in-service acoustic trauma and reported a continuity of symptomatology of bilateral auditory pathology in the form of tinnitus and decreased hearing acuity during and since his active service. See Charles, 16 Vet. App. 370. There is no probative evidence to the contrary. Thus, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s current bilateral hearing loss and tinnitus were incurred in or due to his active duty. As such, with application of the benefit of the doubt, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dion Roberts, Law Clerk