Citation Nr: 18159275 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-62 989 DATE: December 19, 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 evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to in-service acoustic trauma. 2. The evidence is at least evenly balanced as to whether the Veteran’s current tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to April 1966. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by 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 or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection for certain chronic diseases, including an organic disease of the nervous system such as hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101,1112, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997);38 C.F.R. § 3.303 (b). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b). 1. Hearing Loss and Tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus. He contends that these disabilities are due to military noise exposure. In this case, the evidence of record, particularly a November 2015 VA examination, reflects current bilateral hearing loss disability. The audiometric scores on that examination reflect thresholds above 40 decibels at multiple frequencies in the right ear and a speech recognition score of 88 percent in the left ear. In addition, the Veteran has provided competent and credible lay statements that he has ringing in his ears. See ,e.g., September 2015 VA 21-4138 Statement in Support of Claim, June 2016 Correspondence. Given the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the first element of service connection has been met with regard to each claim. The evidence of record also supports a finding that there was in-service noise exposure. As a preliminary matter, service treatment records (STRs) do not include any hearing loss or tinnitus complaints or treatment. At his March 1966 separation examination, the Veteran had an audiogram which showed normal hearing. The Veteran’s DD Form 214 indicates his MOS was Aviation Machinist Mate. In a September 2015 statement, the Veteran reported that he served as a jet engine mechanic, and that the engines were loud and he was not afforded hearing protection. He stated that he also served on the Naval District Funeral honors squad firing a service rifle with blank cartridges. The Veteran indicated that he was not offered hearing protection during the funerals. He noted that he remembered his ears ringing after firing the weapons. See also June 2016 Correspondence. The Board finds the Veteran’s statements credible. Therefore, in-service noise exposure is established. In November 2015, the Veteran underwent a VA examination. He reported that he was a jet mechanic, and that he fired the M-1 with the honor guard during military service. The examiner diagnosed the Veteran with right ear hearing loss, and normal hearing in the left ear. The examiner noted that the Veteran did not have hearing loss by VA standards in his left ear. The examiner opined that given there was no discharge audiogram, hearing impairment in the right ear is at least as likely as not caused by or a result of military noise exposure. The examiner further opined that left ear hearing impairment is less likely as not caused by or a result of military noise exposure. The examiner explained that there was no likelihood of significant shift in thresholds from induction to discharge. The examiner also concluded that the Veteran did not have a diagnosis of tinnitus. The examiner noted that the Veteran reported that he did not have any ringing, humming, or buzzing in his ears, other than a very infrequent episode lasting a minute or so, which was very common for many people and unrelated to noise exposure, military, or otherwise. In a December 2015 VA medical opinion, the examiner opined that the Veteran’s bilateral hearing loss is less likely than not caused by or aggravated by his exposure to military noise. The examiner noted that his separation hearing test indicated normal hearing bilaterally by VA standards. Those standards were such that it was improbable there could have been a significant threshold shift in either ear at any frequency. The examiner explained that current science indicates that “understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely” (Institute of Medicine). The examiner further noted, “The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure” (Institute of Medicine). In a June 2016 statement, the Veteran reported that he did not work, post service, in a noisy environment, and that most all of his working years were in an office. He stated that he did not have exposure to any noisy hobbies, motorcycles, guns, or loud music. The Veteran asserted that he has ringing in his ears from being in the honor guard shooting the M1 at military funerals in Texas. He noted that this was done without any ear protection, and that he did not think anyone had ear protection in the 1960’s. With respect to the issue of bilateral hearing loss, the Board finds the November 2015 VA opinion that the Veteran’s left ear hearing loss is not related service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA examiner opined that due to the Veteran not having left ear hearing loss by VA standards, it is less likely as not caused by or a result of military noise exposure. However, the November 2015 VA examination report shows that the Veteran’s left ear speech recognition score using the Maryland CNC Test measured 88 percent. This evidence demonstrates that the Veteran does have a left ear hearing impairment for VA purposes based on a speech discrimination score of less than 94 percent. Additionally, the examiner incorrectly stated that no audiometric testing was performed at discharge. Furthermore, although the December 2015 VA examiner rendered the opinion that the Veteran’s current bilateral hearing loss was not related to his in-service noise exposure, such an opinion is of no probative value, as it was based on the absence of in-service evidence of bilateral hearing disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the opinion does not consider the Veteran’s competent and credible statements of noise exposure in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). There is no other probative evidence of record which attributes the Veteran’s current bilateral hearing loss to any other cause than in-service noise exposure. The Veteran indicated in his lay statements that he experienced hearing loss in and since service. The Board finds the Veteran’s statements in this regard to be competent and credible. Moreover, VA laws and regulations require an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). After so doing, and with reasonable doubt resolved in the Veteran’s favor, the Board finds that the Veteran’s competent and credible lay statements regarding the in-service noise exposure and hearing loss in and since service, and the clinical evidence showing a current diagnoses of bilateral hearing loss, provide a sufficient basis to grant service connection for bilateral hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. With respect to the tinnitus issue, as noted above, the November 2015 VA examiner opined that the Veteran did not have a diagnosis of tinnitus, other than a very infrequent episode lasting a minute or so. However, there is no temporal requirement for establishing current disability, and the current disability requirement can be met even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles, 16 Vet. App. at 374-75. The Board is required to weigh that testimony and to make a credibility determination. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604, 1996 WL 56489 (Fed. Cir. 1996) (table). The Veteran is competent to report that he has tinnitus, and has indicated that he first noticed tinnitus during service and that it has continued since that time. As no conflicting statements from the Veteran are of record, the Board finds his statements regarding the onset of tinnitus and continuity of symptoms are credible. Thus, accepting his lay statements, and resolving reasonable doubt in his favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C. § 5107 (b). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel