Citation Nr: 1807254	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-28 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss disability. 

2. Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel
INTRODUCTION

The Veteran had active service from March 1968 to December 1969. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In November 2014, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge who is rending the determination in these claims. 


FINDINGS OF FACT

1. Resolving all doubt in his favor, the Veteran's bilateral hearing loss disability had its onset within one year of service. 

2. Resolving all doubt in his favor, the Veteran's tinnitus disability had its onset within one year of service. 

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: '(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

For certain chronic disorders, including sensorineural hearing loss and tinnitus, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred 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 in order to establish entitlement to service connection. Id. 

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a) (2012). 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) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Following a review of the evidence of record, the Board finds that the evidence weighs in favor of the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus disabilities. Specifically, the Board finds that the disabilities meet the presumption standard for chronic diseases.
IIa. Service Connection-Bilateral Hearing Loss

A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 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. Id. 

Regarding evidence of a current disability, the Veteran had been afforded a September 2012 and May 2014 VA examinations, as well as submitted an October 2014 private examination that all establish that the Veteran has a bilateral hearing loss disability as defined under 38 C.F.R. § 3.385. 

Regarding evidence of a disease or injury in service, the Board concedes that the Veteran had in-service noise exposure due to no ear protection during the Veteran's time in Vietnam having served in combat in the arena of infantry.

In regard to a nexus to service, the Board recognizes that the VA opinions from September 2012 and May 2014 do not support a nexus between the Veteran's current disability and his military service. Specifically, the 2012 examination stated that it was the more than likely the Veteran's post-service work that caused his hearing loss and the 2014 examiner stated that it would be mere speculation to determine that the Veteran's hearing loss was related to service as there was no separation hearing test because the testing machine was out of order at the time as noted in the Veteran's military records. However, the Board finds these opinions less probative. In giving all benefit of the doubt to the Veteran, the weight of the evidence is in favor of the Veteran's disabilities being related to his service. The Board finds that the Veteran did not have any type of documented hearing loss or tinnitus disability prior to his military service as noted on his entrance examination in December 1967. It is also conceded by all the examiners that the Veteran had hazardous noise exposure while in service. Despite the lack of testing at the Veteran's separation examination, both the Veteran and his wife provided statements that the Veteran was having troubles with hearing loss within 6 months of returning from Vietnam. They are both competent to report this symptomology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Also, although the 2012 examiner details otherwise in his opinion, based off the testimony provided by the Veteran at his November 2014 hearing, the Board finds that there was little probability of hazardous noise exposure post-service. The Veteran testified that his position as a petroleum exploration geologist following his military service was mostly office work and he had few encounters with the noisy drills and machinery that he managed. As the September 2012 examiner's opinion was based on inaccurate facts, it is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran also provided a private October 2014 opinion that stated that the Veteran's hearing loss was most likely contributed to by his military service. The Board finds this evidence, probative and credible to establishing the Veteran's claim.

The Board finds that given the details of the Veteran's experience while in Vietnam, the extent of his current disabilities and the lack of noise of exposure post-service, that his bilateral hearing loss disability is related to service. Therefore, in granting the benefit of the doubt to the Veteran, the Board finds the evidence stated above establishes a chronic hearing loss disability for the Veteran since service. 

As this disability is a chronic disease under 3.309, by virtue of having a current bilateral hearing loss disability as well as competent evidence establishing that the disability has exist since service, it has been established that the Veteran meets the presumption and therefore, service connection is granted. 

IIb. Service Connection-Tinnitus

The Board finds that the Veteran's claim for tinnitus should be granted as well based on the same rationale as his hearing loss. Both of the Veteran's VA examinations indicated that the Veteran has a current disability of tinnitus.

The Veteran states that he has had this tinnitus symptomology since service, but delayed filing his claim because he was unaware of the potential VA benefit and just grateful to not have worse injuries leaving Vietnam. The Board finds the Veteran credible in his statements and appreciates the Veteran attending the hearing and relaying his symptoms. As such and based on the reviewing of the evidence within the claims file including the Veteran's combat experience and service in infantry, the Board finds these lay statements that the Veteran has had ringing in his ears since service to be competent, credible, and entitled to probative weight.

Based on the above, the Board finds the evidence regarding service connection for tinnitus to be in relative equipoise. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).Ultimately, as the evidence is in relative equipoise, reasonable doubt shall be resolved in favor the Veteran, and his claim granted.

The undersigned notes that she appreciated the Veteran's testimony back in November 2014 and appreciates his service to this country. 


ORDER

Entitlement to service connection for bilateral hearing loss is granted. 

Entitlement to service connection for tinnitus is granted.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs