Citation Nr: 19190889 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-59 080 DATE: December 3, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is attributable to service. 2. Resolving reasonable doubt in favor of the Veteran, his tinnitus is etiologically related to 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, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1952 to May 1960. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (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, 1167 (Fed. Cir. 2004). Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is due to excessive noise exposure while serving in the military. Pursuant to VA regulations, hearing loss is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The Veteran’s service treatment records (STRs) do not exhibit complaints, diagnosis, or findings of bilateral hearing loss. His audiological examinations indicate that he was tested using the whisper test, in which he scored 15/15 bilaterally. No audiometer testing was conducted during service. In August 2015, the Veteran submitted a private medical opinion from Dr. A.M. The examination results indicated that the Veteran had bilateral hearing loss for VA purposes. The Veteran reported that he experienced hearing loss and tinnitus during and since service. He further indicated that he was exposed to large caliber noise from guns without hearing protection. He denied a history of exposure to loud noises, such a firearms or loud machinery, post-service. Dr. A.M. opined that it was more likely than not that at least some of the Veteran’s hearing loss was related to in-service noise exposure. He further opined that the Veteran’s bilateral hearing loss had a 50 percent or greater probability of being caused by the claimed in-service injury. The Veteran was afforded a VA audiological examination in July 2016. The examination results showed bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The examiner noted that there were no objective hearing tests in the Veteran’s STRs, and his military occupational specialty was classified as highly probable for noise exposure. She further indicated that the Veteran did not report hearing loss during active service and that he first sought treatment in 2011. The examiner opined that since hearing loss due to noise occurs during the exposure, it was less likely than not that the Veteran’s current hearing loss was caused or aggravated by in-service noise exposure. The examiner reasoned that the Veteran separated from the military approximately 60 years ago and worked in a textile factory for approximately 25 years. In September 2019, Dr. A.M. opined that the Veteran’s sensory neural hearing loss was related to noise exposure while serving in the military. During the August 2019 Board hearing, the Veteran competently and credibly testified that he worked in the cut-up/finishing department at a textile factory after service. He indicated that he was not in the main warehouse where all the machinery was used. Having considered the evidence of record, the Board finds that it is at least as likely as not that the Veteran’s bilateral hearing loss is etiologically related to service. Dr. A.M.’s medical opinion indicates that there is a link between the Veteran’s in-service noise exposure and bilateral hearing loss. The Board finds that Dr. A.M.’s examination is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds the July 2016 VA medical opinion to be of little probative value as the examiner relied on the inaccurate factual premise that the Veteran was exposed to excessive noise while working in a textile factory post-service. In sum, the Board finds that the Veteran currently has bilateral hearing loss and was exposed to acoustic trauma during service. As to the remaining element, the evidence is at least in equipoise as to the etiology of the Veteran’s bilateral hearing loss. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus The Veteran contends that his tinnitus is due in-service noise exposure. In January 2016, the Veteran underwent a VA examination in which he was diagnosed with recurrent tinnitus. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. She reasoned that the Veteran’s STRs were silent as to complaints of tinnitus and that he did not seek treatment for tinnitus for decades after military service. The Board notes that the Veteran has a diagnosis of tinnitus, and therefore the first element of a service connection claim is met. Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). The Veteran alleges that his tinnitus began in service and has continued since service. The Veteran testified at the August 2019 Board hearing that his ears began buzzing and ringing during service. He stated that he did not think much about it at the time and that he eventually got use to it. The Board finds the Veteran’s testimony credible and highly probative. Therefore, the second element of a service connection claim, in-service incident, is satisfied. Tinnitus is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Service connection is available for tinnitus based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran’s tinnitus has continued since his separation from military service. The Veteran has provided competent and credible evidence regarding continuity from incurrence of the tinnitus while in-service to the present. Therefore, service connection is granted. (CONTINUED ON NEXT PAGE) In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s tinnitus had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert, 1 Vet. App. 49. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.