Citation Nr: 1808854 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-01 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to November 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2016, the Veteran testified during a Travel Board hearing before the undersigned. A transcript of the hearing has been associated with the claims file. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO review. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is etiologically related to his exposure to excessive levels of noise during his active military service. 2. The Veteran's tinnitus is etiologically related to his exposure to excessive levels of noise during his 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, 1112, 1113, 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, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Analysis The Veteran seeks service connection for bilateral hearing loss and tinnitus, each incurred, he asserts, as a result of his exposure to excessive levels of noise during his time in service. The Board has accepted the Veteran's assertion that he was exposed to noise while serving on a Navy ship as credible. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a) (2017). Bilateral hearing loss A June 2012 VA examination confirms current hearing loss, which is disabling for VA purposes, indicating that the Veteran has "Bilateral Moderate Severe SNHL [sensorineural hearing loss] above 1K Hz." 38 C.F.R. § 3.385 (2017). Thus, the current disability requirement is satisfied. With regard to the in-service requirement, service records confirm that the Veteran served on a Navy Ship. His allegation of noise exposure is thus consistent with the circumstances of his service. As previously noted, the Board finds that the Veteran was exposed to the levels of noise in service he described. Thus, the in-service occurrence or injury requirement is likewise satisfied. Turning to the final question of whether a causal relationship exists between the present disability and service, the opinion provided in the June 2012 VA examination is inadequate with regard to bilateral hearing loss because it appears to rest on the fact that the Veteran had normal hearing on separation from service. By contrast a September 2013 opinion by Dr. L. Smith noted that he has been the Veteran's physician for over 35 years. He noted the Veteran's in-service noise exposure and opined that the hearing loss is a result of the noise exposure. The examiner also noted that the Veteran has not had any exposure to medications or other noxious agents that would have led to the bilateral hearing loss. The Board finds the private opinion to be more probative, given that Dr. Smith possesses a greater knowledge of the Veteran's personal history and can account for any intervening events as could have occurred to produce the hearing loss first noted so many years after service. Thus, all elements are met and service connection for bilateral hearing loss is warranted. Tinnitus The Veteran is also seeking service connection for tinnitus. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Regarding the Veteran's tinnitus claim, the Board simply reaffirms the foregoing bilateral hearing loss analysis with respect to the agreement as to his exposure to noise in service, the weight of some, if not all, of the medical evidence in support of service connection, and the credible lay evidence also attesting to the extent and duration of the Veteran's condition. Indeed, the Board observes that the Veteran's private examiner, Dr. Smith noted in his September 2013 statement that for over 35 years the Veteran has reported that he experienced ringing in his ears. In an October 2016 statement, the Veteran's wife of 47 years noted that he has often complained of ringing in his ears since service. During the October 2016 Board hearing, the Veteran testified that he started to experience tinnitus during service. Hearing transcript, pages 16-17. The record presents no reason to question the credibility of the accounts with regards to the onset of the Veteran's tinnitus in service, and that he has experienced tinnitus since. Accordingly, he has substantiated this claim, and service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs