Citation Nr: 21067507 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-37 015 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran bilateral hearing loss began in active service 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran tinnitus began in active service. CONCLUSIONS OF LAW 1. 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, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from June 1967 to June 1969. This matter comes before the Board of Veteran's Appeals (Board) from a decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction AOJ). The Veteran testified in a Board hearing in November 2020. A transcript is of record. Service Connection 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 present 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). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as an organic disease of the nervous system to include hearing loss or tinnitus, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence, that there were characteristics manifestations of the disease to the required degree during that time. Id. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating "(1) that a chronic disease was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). 1. Bilateral Hearing Loss Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. The Veteran's service treatment records include a September 1966 induction audiology examination and a June 1969 separation audiology examination. During these examinations the Veteran underwent puretone threshold examination. Because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where necessary to facilitate data comparison the ASA standards will be converted to ISO-ANSI standard. The Veteran's entrance examination puretone audiology test demonstrated: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 5 (20) 0 (10) 5 (15) 5 (15) 0 (5) The Veteran's separation examination puretone audiology test demonstrated: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (30) 5 (15) 5 (15) - 5 (10) LEFT 5 (20) 10 (20) 5 (15) - 15 (20) In July 2016, the Veteran underwent a VA audiological examination. The examiner diagnosed the Veteran with sensorineural hearing loss (SNHL) bilateral hearing loss. The Veteran underwent a puretone audiology test that demonstrated: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 30 30 50 LEFT 30 40 70 65 65 The Veteran had speech recognition scores of 94 percent in the right ear and 74 percent in the left ear. The examiner found that the Veteran had a permanent positive threshold shift in both the right and left ear. The examiner opined that the Veteran's hearing loss was less like as not caused by or a result of an event in military service. The examiner reasoned that the Veteran's thresholds at the time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee "a noise induce hearing loss will not progress once it is stopped. Thus, the examiner concluded that the Veteran's current hearing loss is less likely than not related to military noise exposure or acoustic trauma. In October 2016, the Veteran stated that while he served, he was on the firing ranges numerous times with rifle and grenade training with no ear protection. The Veteran further noted that he while serving in the Republic of Vietnam, there was incoming fire all the time. The Veteran stated after he flew on unpressurized planes, he would not be able to hear for hours, sometimes a day after a flight. The Veteran noted that when he separated from service, he was given no physical or hearing test. The Veteran testified in November 2020 at a Board hearing. During his testimony, the Veteran stated that he worked in communications and had headphones during his service. The Veteran stated that while he served, he was exposed to gunfire on the rifle range and grenades. The Veteran further noted that he served on airplanes that were not pressurized and would dive to avoid fire in the Republic of Vietnam. The Veteran noted that on occasions after he was on a diving plane his hearing would become muted for at least a day. The Board finds that the service connection for bilateral hearing loss is warranted. The Veteran's separation examination indicates that the Veteran had some right ear hearing loss as defined by Hensley. Further, the July 2016 VA examiner found the Veteran had a permanent threshold puretone threshold shift. A puretone threshold shift noted in both ears along with hearing loss in one ear in service along with the Veteran's competent and credible testimony suggests that some hearing loss had its onset in service and had continued. As such, the Board finds there is sufficient reasonable doubt in this case such that service connection for bilateral hearing must be granted. See 38 C.F.R. § 3.303 (b). The Board considered the July 2016 VA opinion that the Veteran's hearing loss is not related to service because he left service with normal hearing. However, that rationale is contrary to Court's holding in Hensley that the fact that a veteran separated from service with normal hearing is not fatal to hearing loss claim. 5 Vet. App. at 159 2. Tinnitus The Veteran contends that his tinnitus began in service. The Veteran underwent a VA audiological examination in July 2016. During the examination the Veteran reported recurrent tinnitus. The examiner noted the Veteran could not recall the onset of the tinnitus or the circumstances surrounding its onset. The examiner opined there is a lack of evidence in the record of any complaints of tinnitus. The examiner noted the time between the current examination and the Veteran's service without any significant evidence of any audiology treatment in intervening years. The examiner concluded that it is less likely than not the tinnitus was caused by or a result of military noise exposure or acoustic trauma. In November 2020, the Veteran testified in a Board hearing. The Veteran stated that the onset of his tinnitus was in service. As noted above, the Veteran stated he was exposed to hazardous noise and/or acoustic trauma while working with communication equipment, at the firing range, and flying on unpressurized planes. The Board finds that the competent and credible evidence is in equipoise as to whether the Veteran's tinnitus began upon leaving service, has been recurrent since then, and still exists. The Board finds that the Veteran's statements regarding the noise exposure in service and experiencing tinnitus symptoms while in service competent and credible. The Veteran is competent to testify as to observable symptoms such a ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002) (the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.). The Board finds the Veteran's statements to be sufficient proof of this in-service injury and recurrent symptoms. The Veteran's lay statements are found to be credible and are confirmed by the circumstances of his service. See 38 U.S.C. § 1154(a). Therefore, based on a careful review of the entire record, the Board finds that the most probative evidence establishes that the Veteran's current tinnitus as likely as not is due to the Veteran's exposure to noise in active service and that the tinnitus began during active service. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.