Citation Nr: 1806577 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 16-34 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The veteran served on active duty in the Navy from November 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss for VA purposes is related to his military noise exposure. 2. The evidence is in relative equipoise as to whether the Veteran's current tinnitus began in, and has continued since, service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires 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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, and as such are enumerated chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309; see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease of the nervous system'"). The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89(1992). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Hearing Loss The Veteran has a current bilateral hearing disability for VA purposes. See July 2013 VA examination (showing bilateral sensorineural hearing loss). He contends that his hearing loss is the result of his exposure to acoustic trauma during service. The Veteran has reported unprotected exposure to jet engine noise while working on the flight deck of the USS Independence. See statements from January 2012 statement; February 2014 notice of disagreement; April 2014 correspondence; July 2016 substantive appeal. The Veteran's DD-214 reflects that the Veteran served in the Navy as a seaman aboard the USS Independence. The Veteran's reports of military noise exposure are consistent with his military occupational specialty. Based on these reports and the Veteran's military occupation specialty, the Board finds exposure to hazardous noise in service to be consistent with the places, types, and circumstances of such service. Service treatment records show normal whisper tests on enlistment and separation examinations. Audiometric testing, however, was not conducted. The July 2013 VA examiner indicated that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation, as there are no frequency-specific hearing levels at separation. The Veteran has reported a 50-year history of tinnitus. In a January 2012 statement, he indicated that he has had it since his "early years." He also described his efforts to drown out the noise by turning up the volume of the radio or television. See also April 2014 correspondence (complaining of ringing in the ears). This evidence suggests that the Veteran is more troubled by the ringing in his ears than by his hearing loss. This, however, does not negate the possibility that the Veteran has experienced hearing loss during that same time period. In fact, the presence of tinnitus might be interpreted as a sign that the Veteran had a broader hearing disability, as noise-induced hearing loss can cause tinnitus. See National Institute on Deafness and Other Communication Disorders, "Tinnitus," available at https://www.nidcd.nih.gov/health/tinnitus. Insofar as there is evidence that suggests a long history of hearing difficulties, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current hearing loss is related to his military noise exposure. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria of service connection have been met. The Veteran's claim is granted. Tinnitus The Veteran has recurrent tinnitus. See July 2013 VA examination. He contends that his tinnitus is related to his conceded military noise exposure. At the July 2013 VA examination, the Veteran reported a 50-year history of tinnitus. The July 2013 VA examiner indicated that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation, as there is no documentation of tinnitus in the Veteran's service treatment records. The examiner, however, did not address the Veteran's reported long history of tinnitus. In light of this and the lack of a rationale, the Board finds the weight of this examination report to be diminished. The Veteran is competent to report tinnitus, to include its onset, and the Board also finds the Veteran's statements in this regard to be credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2003("ringing in the ears is capable of lay observation"). The evidence shows that the Veteran has experienced tinnitus for a long time. At his VA examination, he has reported a 50-year history of tinnitus, and, in a January 2012 statement, he indicated that he has had ringing in his ears since his "early years." Furthermore, the Veteran has stated that he believed that the ringing in the ear was a normal occurrence, rather than a pathology. In view of the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus began in, and has continued since, service. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria of service connection have been met. The Veteran's claim is granted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs