Citation Nr: 1807428 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-19 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Matta, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1970 to October 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's tinnitus is reasonably shown to have had its onset in service, and to have persisted since. 2. The Veteran's bilateral hearing loss is reasonably shown to be related to/caused by his exposure to noise trauma in service CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the claims being decided. However, inasmuch as this decision grants the benefit sought, there is no reason to belabor its impact on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Tinnitus The Veteran claims his tinnitus began during his active duty service as a result of noise trauma he sustained therein. His exposure to noise trauma in service is not in dispute. On January 2011 VA hearing loss and tinnitus examination, the Veteran reported that his tinnitus began approximately two years prior and became worse in the last year. The examiner opined that it is less likely that his tinnitus is related to service based on the length of time between separation from service and onset of symptoms (37 years postservice, based on his reports). In his October 2011 notice of disagreement, the Veteran stated that he has "always had the ringing in the ears[,]" not just for the last two years. In his January 2014 VA Form 9, he stated that he has had ringing in his years "for years" and that the examiner misunderstood what he was reporting since the ringing in his ears has continued since he got "out of the service." On longitudinal review of the record, the Board finds that the evidence supports the Veteran's claim. As was noted above, it is not in dispute that he has tinnitus, and that he was exposed to noise trauma in service. He is competent to observe that he has experienced tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes the January 2011 VA examiner's negative opinion, but finds that, given the Veteran's reports of tinnitus since service (and his report of a misunderstanding between him and the examiner regarding onset), the evidence is at least in relative equipoise on this matter. Thus, resolving any remaining reasonable doubt in his favor (as required under 38 C.F.R. § 3.102), the Board concludes that service connection for tinnitus is warranted. Hearing Loss The Veteran contends that his bilateral hearing loss is due to exposure to excessive levels of noise in service. It is not in dispute that the Veteran has a bilateral hearing loss disability, as such is shown by official audiometry. See January 2011 VA audiometry results. His exposure to noise trauma in service is not in dispute. What he still must show to substantiate this claim is that his hearing loss is related to his service/noise trauma therein. In the absence of onset in service and continuity postservice, whether a current hearing loss may be related to service/noise trauma therein is a medical question. On January 2011 VA examination, the examiner noted that the Veteran only had a whisper voice test at separation from service in September 1971. Thus, based on the "absence of comparative data in the form of discrete thresholds for individual frequencies on the separation physical, this examiner can not (sic) resolve the issue of cause of hearing loss without resort to mere speculation." Since that examination, the Veteran has provided more detailed information as to his level of noise exposure in service. Additionally, in September 2017 written argument, the Veteran's representative has cited to two internet articles indicating that noise-induced hearing loss can have a delayed onset, many years after exposure to excessive levels of noise. The Board also notes for the record that the absence of hearing loss in service is not fatal to a claim of service connection for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). On longitudinal review of the record, the Board finds that the evidence supports the Veteran's claim. As was noted above, it is not in dispute that he has a hearing loss disability and that he was exposed to noise trauma in service. Based on the foregoing, and resolving the remaining reasonable doubt regarding the etiology for hearing loss in his favor, as required (see 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board concludes that it is reasonably shown that noise trauma was a factor in the Veteran's development of his current hearing loss disability - just as it was for the tinnitus - and that service connection for bilateral hearing loss is warranted. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs