Citation Nr: 1815883	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  17-28 514	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Claire M. Davidoski, Associate Counsel





INTRODUCTION

The Veteran had active service from January 1963 to December 1964.  The current matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA).  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).


FINDINGS OF FACT

1.  The Veteran's bilateral sensorineural hearing loss is etiologically related to service.

2.  The Veteran's tinnitus is etiologically related to service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As the Board's decision is completely favorable to the Veteran, no further discussion, or action, is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.

II.  Service connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  

Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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 (Fed. Cir. 2004).

Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes sensorineural hearing loss and tinnitus, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303 (b).  

For the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  

The lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim.  The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

In the current appeal, the Veteran was afforded a VA audiological examination in 2014, which confirmed that the Veteran has bilateral hearing loss for VA purposes.  38 C.F.R. § 3.385.  With regard to tinnitus, the Veteran has reported having ringing in his ears since service, which became a constant ringing approximately six years after service.  He is competent to report observable symptoms such as ringing in his ears, and tinnitus is the type of disorder associated with symptoms capable of lay observation.  Charles v. Principi, 16 Vet. App. 370 (2002).  Thus, there is sufficient evidence of current disabilities of hearing loss and tinnitus. 

The Veteran's DD Form 214 shows that his military occupational specialty (MOS) involved field artillery basic and that he was assigned to the B Battery 6th Battalion of the 12th Artillery.  His reports of noise exposure in service are consistent with the facts and circumstances of his service.  38 U.S.C. § 1154(a).  Accordingly, the Board finds that in-service exposure to noise is established. The 2014 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or related to noise exposure during service.  In arriving to these opinions, the examiner reviewed the claims file and provided rationales.  However, after reviewing and weighing the competent lay and medical evidence of record, the Board finds that the evidence contradicts the examiner's opinion, and supports a finding that the Veteran's current hearing loss and tinnitus are related to his active service.  

The Board notes that, prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since December 31, 1970, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI).  In order to facilitate data comparison for VA purposes, including under 38 C.F.R. § 3.385, for service department audiometric test results rendered through December 31, 1970, the ASA standards are converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows:




HERTZ



500
1000
2000
3000
4000
Add
15
10
10
10
5

The Veteran's November 1962 pre-induction audiogram, when converted to ISO-ANSI standards, showed pure tone thresholds of 15, 5, 5, 5 and 10 decibels in the right ear and 20, 10, 20, 10, and 0 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz (specified frequencies).  The Veteran's  October 1964 separation examination audiogram, when converted to ISO-ANSI standards, showed pure tone thresholds of 35, 30, 30, 10 and 10 decibels in the right ear and 40, 15, 30, 5, and 25 decibels in the left ear at the specified frequencies.

While the Board cannot ignore or disregard the VA audiologist's medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion.  See Wilson v. Derwinski, 2 Vet. App. 614 (1992).  In this case, the 2014 VA examiner's opinions are problematic for multiple reasons.  

Regarding the 2014 VA examiner's opinion against a medical nexus to service for bilateral hearing loss, the examiner based his opinion on the fact that the Veteran's hearing thresholds at the time of entrance and separation were within normal limits.  The Board finds this statement innacurate.  When converted to ISO-ANSI standards, the Veteran's separation audiological examination clearly showed hearing loss for VA purposes, which had not been present at the Veteran's entrance audiological examination.  As such, the VA examiner rendered the negative nexus opinion possibly without converting the service audiological examination findings to ISO-ANSI standards.  The Veteran's left ear, having shown an auditory threshold of 40 decibels at 500 Hertz, and the Veteran's right ear, having shown auditory thresholds greater than 26 decibels at 500, 1000, and 2000 Hertz, both met the 38 C.F.R. § 3.385 criteria for compensable hearing loss when the Veteran separated from active service.  Neither ear met the criteria for hearing loss for VA purposes in the Veteran's pre-induction audiological examination, supporting a finding that the Veteran's hearing loss disability first manifest - and was incurred - in service. 

Regarding the 2014 VA examiner's opinion against a medical nexus to service for tinnitus, the examiner based his opinion on a finding that the Veteran's tinnitus did not begin until six years after he had separated from active service.  The examination report clearly states that the Veteran reported his tinnitus symptoms initially began while he was in active service, but he stated that they were intermittent at that time, and only became constant approximately six years after active service.  As such, the examiner overlooked the Veteran's competent statements regarding his tinnitus symptoms having been onset in active service.  There are no contradictory statements made elsewhere in the claims file regarding the tinnitus having developed during service, so the Board finds his assertions of the onset in service to be credible and probative.

Moreover, the record also contains favorable evidence in the form of the Veteran's credible account of his likely exposure to some degree of acoustic trauma during service (as is confirmed by his military duties) and of his competent descriptions of impaired hearing and tinnitus since service.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

In light of the above, the Board finds that the weight of the probative evidence establishes that the Veteran's bilateral hearing loss and tinnitus were incurred in service, and his claims for service connection are gratned.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.




____________________________________________
J. Schulman
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs