Citation Nr: 1807283 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-34 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active service from July 1970 to September 1972. This current matter comes to the Board of Veteran's Appeals (Board) on appeal from a rating decision dated May 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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. Resolving reasonable doubt in his favor, the Veteran has bilateral hearing loss attributable to his active military service. 2. Resolving reasonable doubt in his favor, the Veteran has tinnitus attributable to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims for service connection for bilateral hearing loss and tinnitus are being granted herein. Any error related to VA's duty to notify and/or assist on these claims is moot. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. Here, the Veteran contends that his current hearing loss and tinnitus are attributable to noise exposure he experienced while serving on active duty. The Veteran's DD Form 214 indicates that his military occupational specialty involved artillery. His in-service exposure to acoustic trauma is therefore conceded. The Veteran has consistently maintained that he first noticed ringing in his ears and loss of hearing acuity in service and has continued to experience the same symptoms from that time to the present. His service treatment records are silent as to any complaints of, or treatment for, hearing problems or tinnitus. An April 2014 VA audiological examination testing revealed pure tone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) were as follows: 40, 40, 55, 65 and 70, and for the left ear: 65, 75, 105, 100, and 100. The examiner diagnosed bilateral hearing loss, but gave a negative etiological opinion that, as the Veteran had normal hearing upon discharge, it was less likely than not that his bilateral hearing was related to service. The examiner also found that the Veteran's tinnitus was at least likely as not etiologically linked to service. A private opinion from Dr. R.C. dated January 2017 gave a positive etiological opinion and stated, after his examination, that he found the Veteran's noise exposure during service was the cause of his currently-diagnosed hearing loss and tinnitus. Private audiological examinations of record reflect the Veteran's bilateral hearing loss but fail to give an etiologic opinion. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss and ringing in the ears are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Several examination records and correspondence of record note the Veteran's continued reports detailing his hearing loss and tinnitus and his contention that he was exposed to sound in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. The Board finds the Veteran's statements are credible and probative. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran's favor, a grant of service connection for hearing loss and tinnitus is warranted. The evidence shows a current diagnosis of hearing loss and tinnitus, which the Veteran has reported began during service and has continued from that time to the present. With regard to the Veteran's complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of hearing loss and tinnitus. The Board acknowledges that the April 2014 VA examiner stated that it was less likely than not that the Veteran's hearing loss began in, or is otherwise etiologically linked to, his active military service. However, the Board finds that this medical opinion did not give due consideration to the Veteran's competent account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of noise exposure in service. Thus, the Board finds that the May 2014 VA examination is less probative than the January 2017 private medical opinion that offered a clear rationale for the finding that the Veteran's hearing loss and tinnitus are likely linked to active duty. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based upon the January 2017 private physician's opinion, the Veteran's noise exposure in service, and reports of continuous symptoms since service, the Board finds hearing loss and tinnitus are a result of military service. With resolution of reasonable doubt in the Veteran's favor, service connection for hearing loss and tinnitus is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs