Citation Nr: 19111592 Decision Date: 02/13/19 Archive Date: 02/13/19 DOCKET NO. 17-33 818 DATE: February 13, 2019 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The Veteran was exposed to excessive levels of noise during service. 2. Bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. 3. The Veteran's bilateral tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 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 November 1964 to November 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Muskogee, Oklahoma. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a) (2017). "Other organic diseases of the nervous system," which may include sensorineural hearing loss and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operate to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss which he believes developed as a result of acoustic trauma related to his military occupational specialty (MOS) as an Engineering Officer. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2017). Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. Here, the record reflects that the Veteran has been diagnosed with bilateral hearing loss that meets VA criteria for consideration as a disability. See August 2016 VA Examination; 38 C.F.R. § 3.385. As such, the first element of service connection, a current disability, is satisfied. Turning next to service incurrence, the Board finds that the Veteran was exposed to excessive levels of noise in service, based on his consistent statements regarding in-service noise exposure related to his MOS. The Board also notes that while the Veteran’s specific MOS isn’t listed in VA’s Duty Military Occupational Specialty (MOS) Noise Exposure Listing, military personnel having an MOS of Engineer have for the most part been determined to have a moderate to high probability of noise exposure. In addressing nexus, the August 2016 VA examiner opined that it is less likely than not that the Veteran's hearing loss was caused by or a result of an event in military service. After noting the Veteran's report of acoustic trauma due to his MOS as Engineer, the examiner reasoned that because the Veteran’s hearing was normal during service with no report of decreased hearing and there was significant non-military occupational and recreational noise exposure it was less likely than not that his current bilateral hearing loss was related to service. The examiner explained that the more likely causes of the Veteran’s bilateral hearing loss were his post military occupational and recreational activities, including shooting/hunting, which resulted in exposure to equipment and engines. Given the absence of relevant findings in service, the examiner further reasoned that other additional sources were more likely causative of hearing loss in this case, including medical conditions, medications, smoking/alcohol use, and aging of the auditory system in general, are also a likely source of hearing loss. The examiner stated that her opinion was based audiology principles, multifaceted origins of hearing loss, medical history/medications, records reviewed, and the current examination. The Board finds the August 2016 VA examiner opinion to be highly probative. The opinion was based on a review of the claims file and relevant facts, and the examiner provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's complaints related to his bilateral hearing loss, and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether the Veteran has current bilateral hearing loss sustained in service for which service connection may be granted is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. Therefore, service connection for bilateral hearing loss is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. 2. Entitlement to service connection for bilateral tinnitus The Veteran seeks service connection for bilateral tinnitus. Specifically, the Veteran contends that he developed tinnitus as a result of acoustic trauma related his MOS as Engineering Officer. Following review of the evidence of record, the Board finds that service connection for bilateral tinnitus is warranted. At the outset, the Board finds that the Veteran was exposed to excessive levels of noise, based on his consistent statements regarding in-service noise exposure related to his MOS. The Board also notes that while the Veteran’s specific MOS isn’t listed in the VA’s Duty Military Occupational Specialty (MOS) Noise Exposure Listing, personnel having an MOS of Engineer have for the most part been determined to have a moderate to high probability noise exposure. The Board also finds that the Veteran has a current disability, as he is competent to testify to observable symptoms, such as ringing in his ears, and has done so credibly in this instance, including during an August 2016 VA audiological examination. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the remaining question is whether the Veteran's current tinnitus is related to his in-service acoustic trauma. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). If it does, such testimony is sufficient to establish service connection. Id. The Board finds that the Veteran's lay statements are sufficient to establish service connection for tinnitus in this instance. The Veteran argued in a January 2018 Informal Hearing Presentation submitted via his representative that he is competent to report that he has had ringing in his ears since service. See January 2019 Informal Hearing Presentation. Read in context and affording the Veteran the benefit of the doubt, the Board will conclude that the Veteran's statement constitutes a continuity of tinnitus from service. The Board acknowledges that the Veteran reported during the August 2016 VA examination that he was unaware of how the ringing began, but believed it started many years ago. See August 2016 VA Examination. However, the Veteran has otherwise consistently stated that his tinnitus was incurred in service as a result of noise exposure related to his MOS. In short, in light of the positive and negative evidence of record, to specifically include the Veteran's competent and credible report of in-service noise exposure and continuity of symptomatology, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel