Citation Nr: 1815862 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 16-50 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 APPEARANCE AT HEARING ON APPEAL Appellant's Representative ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran had requested, and was scheduled for, a Board video-conference hearing, which was to be held on March 6, 2018. During the hearing, it was noted that the Veteran himself was unable to be present to testify, due to terminal illness. However, the Veteran's representative presented argument on his behalf. The presentation of argument by a representative during a Board hearing in the absence of a veteran is permissible. See 38 C.F.R. § 3.103(c)(2) (2017) ("The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative") (emphasis added); 38 C.F.R. § 20.700(b) (2017) ("A hearing will not normally be scheduled solely for the purpose of receiving argument by a representative. . . . Requests for appearances by representatives alone to personally present argument to Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member assigned to conduct the hearing") (emphasis added). Given the circumstances of this case including the terminal illness of the Veteran, the Board finds there was good cause for the hearing to be conducted solely for the purpose of receiving argument by the Veteran's representative. 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. The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is attributable to noise exposure in service. 2. The evidence is at least evenly balanced as to whether the Veteran suffers from tinnitus that is related to noise exposure in service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2017). In addition, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding the 38 C.F.R. "§ 3.309(a) includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[ ] of the nervous system'"). VA Adjudication Manual, M21-1, IV.ii.2.B.2.b (March 2, 2017) (noting that the Compensation Service has determined sensorineural hearing loss is an organic disease of the nervous system). Service connection may 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(d). Generally, establishing service connection requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of a hearing loss claim, impaired hearing will be considered a disability by VA when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz 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). In February 2014, the Veteran was afforded a VA audiological examination. A review of the audiogram shows that the Veteran has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Further, although the Veteran did not report tinnitus at the time of the examination, the Veteran previously reported having experienced ringing in his ears since service. The Veteran is competent to testify as to the existence of ringing in his ears. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology"); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that "ringing in the ears is capable of lay observation" and, as such, a veteran is competent to testify as to that symptom). Resolving the reasonable doubt created by the inconsistency regarding whether the Veteran does experience symptoms of tinnitus in favor of the Veteran, the Board finds that he does currently, and also has since service, experienced tinnitus. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to "any other point"). The Board also points out that in the examination request, the RO indicated that the Veteran had served as an infantryman and that it was thus highly probably that he was exposed to noise in service. Noise exposure based on the Veteran's military occupational specialty is thus conceded. Accordingly, the question as to both claimed disabilities is one of nexus. See Davidson, supra. At the outset, the Board acknowledges that the evidence of record is insufficient to support a finding that sensorineural hearing loss manifested in service or within one year of separation from service, so as to afford the Veteran presumptive service connection. See 38 C.F.R. §§ 3.307, 3.309. Indeed, the Veteran's separation audiogram shows hearing within normal limits and the first post-service evidence of hearing loss is the February 2014 VA examination report. Although no hearing loss disability was shown to have existed in service, or within one year of the Veteran's separation from service, service connection can still be established on the basis of post-service evidence of a nexus between current hearing loss and service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether such a nexus exists, the Board must consider the Veteran's contentions in conjunction with the circumstances of his service. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). In the instant case, the audiologist who examined the Veteran in February 2014 noted that the Veteran's service treatment records did not contain an entrance examination report, but did show normal hearing upon separation from service. The examiner additionally acknowledged the Veteran's conceded in-service noise exposure. The examiner then opined that it was less likely than not that the Veteran's current hearing loss began with noise exposure in the military. As rationale for the opinion, the examiner relied on the absence of evidence demonstrating hearing loss in service, stating that the Institute of Medicine (IOM) had concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. Notably, however, the audiologist did not discuss the Veteran's lay statements regarding when he first noticed a decrease in hearing acuity, which undermines the probative value of the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). See also Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Indeed, in support of his claim for service connection, the Veteran has reported the onset of symptoms of diminished hearing in service. The Board notes that the Veteran, as a layperson, is competent to report on matters observed or otherwise perceived through the senses, or within his personal knowledge, to include the occurrence of injury or symptoms experienced or observed. See 38 C.F.R. § 3.159(a)(2) (2017); see also Charles, supra. Although the Veteran cannot render the testing results needed to establish a current hearing loss disability for VA purposes, and is not shown to have training or expertise in audiology to provide a persuasive opinion on the medical nexus question solely the basis of his own assertions, the Board finds no reason to question his report of diminished hearing in service or his assertion that he has continued to experience diminished hearing from service to the present. His statements are accepted as credible, especially in light of the fact that in-service noise exposure has been conceded. Overall, the Board finds that while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. While the VA examiner has opined against a likely association between the Veteran's in-service noise exposure and his current hearing loss, the Veteran has reported a continuity of symptomatology since service. Here, given the observable nature of the claimed disability and after reviewing all the evidence on file, the Board finds no adequate basis to reject the competent lay that is favorable to the Veteran, based on a lack of credibility or probative value. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that an award of service connection for bilateral hearing loss is warranted in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Concerning the Veteran's claim of service connection for tinnitus, the Board notes that the VA examiner did not proffer an opinion regarding the etiology of the Veteran's tinnitus due to the fact that the Veteran had not reported tinnitus at the time of examination. A different VA clinician later reviewed the claims file in August 2016 and stated that an opinion regarding the etiology of the Veteran's tinnitus could not be provided without resorting to mere speculation. A medical "examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection" for purposes of the benefit of the doubt rule. Fagan v. Shinseki, 573 F. 3d 1282, 1289 (Fed. Cir. 2009). As noted, the Veteran has reported ringing in his ears beginning in and existing since service, a symptom which he is competent to testify as to the existence of. See Barr and Charles, both supra. The Board finds no reason to question the veracity of the Veteran's reported onset of tinnitus or as his report of continuity of experiencing such symptoms since that time. The Board also points out that medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the coexisting hearing loss. See, e.g., Harrison's Principles of Internal Medicine 182 (Dennis L. Kasper et al. eds., 16th ed. 2005). Under the particular circumstances presented here, the Board is persuaded that the Veteran's tinnitus can as likely as not be attributed to the same etiology as his service-connected hearing loss, i.e., in-service exposure noise exposure. Thus, resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs