Citation Nr: 18160977 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-46 860 DATE: December 28, 2018 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The weight of the evidence is against finding a causal relationship between in-service noise exposure and the Veteran’s hearing loss disability. 2. The Veteran’s tinnitus condition is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§1110, 1112, 5107, (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1980 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lakewood, Colorado. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2017. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Certain chronic diseases, such as other organic diseases of the nervous system, including sensorineural hearing loss, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Further, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance in the 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) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For purposes of applying the laws administered by the VA, impaired hearing will only be considered an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2017). The Court in Hensley v. Brown has held that the threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. 5 Vet. App. 155, 157 (1993). 1. Hearing Loss The Veteran asserts he developed hearing loss while in service. As noted in his military occupational specialty (MOS), he served as a tactical aircraft maintenance craftsman for 12 years and three months and as an information management journeyman for one year and 10 months. As noted in the Veteran’s enlistment examination in March 1980, there were no abnormalities with his ears or ear drums. The audiological assessment did reflect the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 5 5 5 LEFT 20 5 5 5 5 During service, the Veteran underwent audiological examinations in September 1982, October 1983, December 1984, June 1988, and January 1992, which did not indicate any significant hearing loss, injuries to the ears, or significant shift in thresholds. The January 1992 audiological assessment results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 10 LEFT 0 5 0 0 0 The Veteran’s records did not include a separation examination. In an October 2015 VA examination for the Veteran’s hearing loss and tinnitus disability, his speech discrimination scores were 96 percent for both the left and right ear. His examination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 10 10 30 45 24 96 LEFT 10 10 30 45 24 96 The VA examiner opined that the Veteran had sensorineural hearing loss, but rendered a negative opinion stating that his hearing loss was less likely than not related to service. After consideration of the Veteran’s audiological assessments at enlistment and throughout service, he conceded that the Veteran was exposed to hazardous noise while in service, but stated that since the Veteran’s audiological assessments did not show a significant threshold shift beyond normal variability while in service, it was less likely than not that his hearing loss after service was incurred in service. In support of the examiner’s opinion, he referenced an Institute of Medicine of the National Academies’ study which discussed the relationship between noise exposure in service and hearing loss and/or tinnitus. The study found that not everyone exposed to hazardous noise will suffer noise injury, and that delayed onset hearing loss due to previous noise exposure is unlikely to occur. The study stated that if the evidence shows there has been no significant threshold shift beyond normal variability while in service, then any hearing loss occurring after service is less likely than not caused by or a result of noise exposure while in service. At the July 2017 hearing, the Veteran testified that he was responsible for starting the unit that provided power to the aircraft’s engines. Each preparation of an aircraft lasted about 45 minutes prior to take-off. Although he was provided with hearing protection, he would have to remove his hearing protection during the procedure to communicate with other crew members. He also testified that the location of the aircrafts on the flight line were located about 50 feet from the hangar where aircrafts were taxiing to the runway. Furthermore, he stated that he went home daily with temporary hearing loss which recovered by the next day. The Veteran also shared that to maintain his position, he had memorized the audiological assessments to pass them throughout service. The Board has considered the Veteran’s MOS, STRs, and testimony and acknowledge that he did experience noise exposure in service and currently has hearing loss. Under 38 U.S.C. 3.304 (2012), the veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. However, if hearing loss does not meet the definition under 38 C.F.R. § 3.385, the Veteran is entitled to be presumed sound. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016) (a veteran is entitled to a presumption of soundness if the degree of hearing loss noted does not meet VA’s definition of a disability for hearing loss under 38 C.F.R. § 3.385). On entrance, the Veteran had hearing loss in the right ear of 25 decibel in the 500 frequency and 20 decibel in the 1000 frequency, and in the left ear, 20 decibel in the 500 frequency. However, according to McKinney, this does not support a finding that he was not sound on entrance as he did not have hearing loss according to 38 C.F.R. § 3.385. Although the VA examination shows that the Veteran has an auditory threshold of 45 decibel for his left and right ear at the 4000 frequency, satisfying one of the criteria under section 3.385, the Board is required to determine whether there is a causal relationship of the current hearing loss to any exposure to disease or injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the STRs did not reflect any record of acoustic trauma or complaints of hearing loss to support the Veteran’s contention that his hearing loss occurred in-service. His audiology assessments throughout service did not indicate a significant shift in auditory threshold and his January 1992 audiological assessment showed that his hearing threshold were normal prior to his separation in November 1994. Additionally, the VA examiner provided an opinion which was probative to determine whether the Veteran suffered any in-service injuries or exposure to hazardous noise. The examiner stated that although the Veteran was exposed to hazardous noise, there were no records of the any in-service injuries to his ears. Furthermore, his audiological assessments did not show a significant shift in thresholds beyond normal variability while in service. Although the Veteran asserted that he memorized the audiological examinations to pass the hearing assessments the Board does not find his assertion to credible. While lay statements are sufficient to describe what veterans observe, such as hearing loss, lay statements are not competent to diagnose hearing loss disability or the extent of impairment as set forth in VA regulations. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Furthermore, the evidence does not show that his hearing loss manifested during active service or to a compensable degree within a year after separation. Prior to separation, his January 1992 audiological assessment results were within normal thresholds. There were no additional medical records for the Veteran’s hearing loss disability until the October 2015 VA examination. As such, the Veteran’s current hearing loss cannot be causally related to his service. In reaching a determination, the Board has afforded the most probative value to the 2015 VA examination opinion. The audiologist considered the evidence of record, and such opinion is more probative than the Veteran’s lay assertions. Further, as this opinion is unequivocally stated, consistent with the record and supported by cited evidence of record, the Board finds that this medical opinion is probative against the Veteran’s claim. As such, the preponderance of evidence is against the claim of service connection for hearing loss and there is no doubt to be resolved. Therefore, service connection for hearing loss is denied. 2. Tinnitus Similarly, the Veteran maintains that tinnitus is a result of his noise exposure in service. In consideration of the evidence before the Board, a veteran is competent to identify tinnitus, such as ringing in the ears, as such condition is readily observable by layperson and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the October 2016 VA examination reported that the Veteran was exposed to aircraft and vehicle noise and weapons, but the VA examiner rendered a negative opinion stating that tinnitus was less likely than not related to service because he did not experience any noise injury while in service. During the Board hearing, the Veteran testified that within a year after separation he started to notice the buzzing and loud ringing in his ears. He also stated that the buzzing in his ears never stops requiring him to take over-the-counter medication to sleep. Accordingly, the Board finds that the Veteran was exposed to acoustic trauma in service according to his MOS. Considering all lay and medical evidence of record, the Board resolves reasonable doubt in the Veteran’s favor and finds that he currently has tinnitus as a result of noise exposure during service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for tinnitus is granted. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Doaw Xiong