Citation Nr: 19152167 Decision Date: 07/05/19 Archive Date: 07/05/19 DOCKET NO. 14-40 640 DATE: July 5, 2019 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s current tinnitus began during service. 2. The Veteran’s bilateral hearing loss is related to in-service exposure to excessive noise. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1944 to February 1950, and from June 1951 to October 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On behalf of the Veteran, the Veteran’s representative attended a videoconference hearing before the undersigned Veterans Law Judge in June 2018. The Veteran was unable to attend the hearing in person. A transcript of the hearing is associated with the claims folder. The Board subsequently sought a Veterans Health Administration (VHA) expert opinion in July 2018 and received a response in June 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection The Veteran maintains that his current bilateral hearing loss and tinnitus are related to his in-service exposure to excessive levels of noise. In the Veteran’s June 2011 Statement in Support of Claim, the Veteran reported that during World War II he made several trips hauling ammunition from Guam to Okinawa and worked as a metalsmith during the Korean War. In the June 2011 Application for Compensation and/or Pension, the Veteran also asserted that as part of his military service duties he worked near 50 caliber machine guns. The Veteran’s February 1944 entrance examination and January 1946 separation examination documented the Veteran’s hearing acuity to be within normal limits. However, two May 1951 examination reports documented right and left “scarred ear drums.” Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease, including hearing loss, 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). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 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.” Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Id. at 272. 1. Tinnitus The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). For example, the Veteran reported at an April 2012 VA examination he currently experiences symptoms of tinnitus. Thus, a current disability has been established. Additionally, service treatment records reveal an in-service injury to the Veteran’s ears. Two May 1951 examination reports documented right and left “scarred ear drums.” The remaining question, then, is whether the Veteran’s current tinnitus is related to service. At an April 2012 VA examination, the Veteran maintained that he experiences intermittent symptoms of tinnitus. He stated that he began to first notice symptoms in 1949. The examiner found that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. For support, the examiner commented that the Veteran could not “recall the exact date of onset and has a significant history of noise exposure with civilian employment over a period of years.” In this instance, the Board finds the Veteran’s statements regarding the in-service onset and continuation of his current tinnitus are sufficient to establish service connection. See 38 C.F.R. § 3.309(a); Fountain, 27 Vet. App. at 271-72. In so finding, the Board finds that the April 2012 VA audiological opinion was inadequate because the opinion neither evaluated the Veteran’s reports of experiencing intermittent tinnitus since 1949 nor commented on the significance of service treatment records that documented bilateral ear drum scarring. In any event, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible reports of tinnitus that began in service and continued thereafter, the Board finds that the evidence is at least in equipoise regarding whether he has current tinnitus that was incurred in service. Hence, affording him the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Bilateral Hearing Loss The Board next addresses the issue of entitlement to service connection for bilateral hearing loss. Review of the service treatment records reveals two May 1951 examination reports that documented right and left “scarred ear drums.” Accordingly, the element of an in-service injury is established. Also, VA treatment records confirm that the Veteran has bilateral hearing loss for VA disability purposes. Specifically, the April 2012 VA examination report recorded a diagnosis of bilateral sensorineural hearing loss. Accordingly, a current disability is established, and the question becomes whether the disability is related to service. The April 2012 VA examiner observed that the Veteran’s entrance and separation audiological examinations involved whisper noise tests. The examiner noted that “this test is insensitive to high frequency hearing loss which is typical of noise-induced hearing loss,” but ultimately concluded that the “veteran’s hearing loss is less likely as not caused by or a result of his military service.” The Board sought a VHA expert opinion in July 2018. In a June 2019 medical opinion, the examiner found that the Veteran entered service without mention of scarring on his tympanic membranes, he separated from service with noted scarring on both tympanic membranes. The examiner acknowledged the Veteran’s military occupational specialty as a sheet metal worker and noted that sheet metal works have been shown to have hazardous noise exposures on the job. For support, the examiner cited to an article from the American Industrial Hygiene Association Journal. It stated that “[a]udiometric examination showed that this group of construction workers had hearing losses, with most of the loss occurring in the 3KH(Z) to 6KH(Z) range.” The examiner concluded that “based on the available evidence, it is at least as likely as not that the Veteran incurred a significant threshold shift and hearing loss while in service.” Following careful review of the evidence the Board finds that probative evidence weighs in favor of a relationship, such that service connection for bilateral hearing loss is warranted. Unlike the earlier VA medical opinion, the June 2019 VHA medical specialist opinion addressed all relevant audiometric data included in the service treatment records. Specifically, the examiner found that the 1951 medical examination documented “scarring on both tympanic membranes.” Additionally, the medical examiner included an accurate recitation of the Veteran’s hearing loss complaints since he separated from active duty as well as consideration of noise exposure due to the Veteran’s military occupational specialty. The VHA medical opinion his highly probative, because it is based on a thorough review of the medical record, 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). The Board acknowledges that the April 2012 VA examiner offered a negative nexus opinion. However, the examiner did not evaluate the significance of the Veteran’s reports of exposure to ammunition fire and occupational noise. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the examiner failed to address service treatment records that documented bilateral ear drum scarring. As such, the examiner’s medical opinion is inadequate and offers little probative value. In any event, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible reporting describing hearing loss that began in service and continued thereafter, the Board finds that the evidence is at least in equipoise regarding whether he has current bilateral hearing loss that was incurred in service. Hence, affording him the benefit of the doubt, service connection for hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, 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.