Citation Nr: 1808764 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-27 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active duty military service from March 1972 to December 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for right ear hearing loss and tinnitus. On the VA Form 9, received in October 2012, the Veteran requested a Board hearing. However, in May 2017, he subsequently indicated that he was unable to attend the hearing due to his wife's illness and did not request to reschedule the hearing. As such, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.702. FINDINGS OF FACT 1. The Veteran's current right ear hearing loss for VA purposes has been shown to be the result of noise exposure during active military service. 2. The Veteran's tinnitus has been shown to be the result of noise exposure during active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1154(a) (2012); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 C.F.R. §§ 1101, 1110, 1154(a) (2012); 38 C.F.R. §§ 3.159(a), 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In this decision, the Board grants entitlement to service connection for right ear hearing loss and tinnitus. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran asserts that his right ear hearing loss and tinnitus are the result of noise exposure incurred during military service. The evidence shows a current right ear hearing loss disability for VA purposes and tinnitus. See 01/28/2010, VA Examination. Accordingly, present disabilities of right ear hearing loss and tinnitus have been established by the evidence. A review of the Veteran's DD-Form 214 indicates that his military occupational specialty (MOS) was a rifleman. As a rifleman, the Veteran indicated that he was exposed to hazardous noises in the form of small arms, heavy weapons, and indirect firing of weapons. According, the Board finds that in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran's active service. 38 U.S.C. § 1154(a). Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran's right ear hearing loss and tinnitus are due to noise exposure during his active military service. The Veteran stated that he experienced hearing loss and tinnitus in service and it has continued and worsened since service. His service treatment records indicate that he experienced a 15 decibel increase at the 4000 Hertz level when comparing the October 1971 entrance and December 1974 exit hearing examinations. A VA examination was performed in January 2010. The Veteran reported his excessive noise exposure in service and indicated that he worked in construction for 20 years after service with hearing protection. He denied any history of civilian recreational noise exposure. When comparing the entrance and exit examinations, the examiner indicated that the Veteran's thresholds had progressed bilaterally to a mild loss at 4000 Hertz. However, because the Veteran's right ear hearing loss did not meet the criteria for VA disability purposes at the time of separation, she concluded that it was less likely than not that the Veteran's right ear hearing loss was related to military service. Furthermore, because there was no record of tinnitus in the Veteran's service treatment records, the examiner concluded that the Veteran's tinnitus was not related to service. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current right ear hearing loss and tinnitus are related to noise exposure during his active military service. The Veteran is competent to describe what he experienced in service. 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 lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent to testify regarding the in-service noise exposure. Furthermore, the Veteran stated that noise exposure left him with ringing and buzzing in his ears and hearing loss. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003) (stating that "ringing in the ears is capable of lay observation"). The Board also finds that his statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). The Board finds that the January 2010 examiner failed to take into account the Veteran's statements of hearing loss and ringing and buzzing in his ears in service, which continued post-service. In this regard, the examiner acknowledged the Veteran's decrease in his right ear hearing at 4000 Hertz in service but indicated that because this hearing loss did not rise to the level of a VA disability it was less likely than not incurred in service. Furthermore, the examiner concluded that the Veteran's tinnitus was not incurred in service because there were no documented complaints in service. The Board finds the January 2010 opinion is of little probative weight given the examiner's admission that the Veteran's sustained a decrease in hearing during service and her failure to take into account the Veteran's statements of continued complaints of hearing loss and tinnitus post-service. In view of the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Accordingly, service connection for right ear hearing loss and tinnitus are warranted. ORDER Service connection for tinnitus is granted. Service connection for right ear hearing loss is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs