Citation Nr: 18160680
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-03 577
DATE:	December 27, 2018
ORDER
Entitlement to service connection for right ear hearing loss is granted. 
Entitlement to service connection for tinnitus is granted.  
FINDINGS OF FACT
1. The Veteran’s right ear hearing loss began during active service.
2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. 
CONCLUSIONS OF LAW
1. The criteria for service connection for right ear hearing loss are met.  38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385.  
2. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1131, 1112, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from September 1982 to September 1987.
This case is on appeal before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).  The Board herein grants in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be discussed.
The Veteran seeks service connection for right ear hearing loss and tinnitus, both of which he alleges are related to active service. 
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R.            § 3.303(d).  
In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999).
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 a 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.  38 C.F.R. § 3.303(b).  If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 
In addition, for certain chronic diseases, such as organic diseases of the nervous system, which include both sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) 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.  When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).
I.	Right Ear Hearing Loss
The Veteran seeks service connection for right ear hearing loss, which he traces to events in service.  According to the Veteran, he was exposed to loud noises during frequent live-fire exercises.  Additionally, the Veteran asserts that he worked on the deck near a helipad, and as a result was exposed to loud noises from aircraft as well.  See June 2016 correspondence.   
Impaired hearing will be considered to be a disability under the laws administered by the VA 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 Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected.  Id. at 159.
The Veteran’s service treatment records include an audiogram with his April 1982 enlistment examination report, which showed the following puretone thresholds: 


 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 15 	5 	 5	10 	15 
LEFT	15	       15	 5	5  	       5

The Veteran underwent further audiological testing in May 1985.  Puretone testing results were as follows:  
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 15 	20 	       10	45 	50 
LEFT	20	25 	 15	 30  	      50
The Veteran was afforded audiological testing as part of his September 1987 separation examination, which showed the following puretone thresholds: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 15 	25 	       10	35 	50 
LEFT	15	15 	 5	 30  	      35
The record contains no further complaints of hearing difficulties or records of treatment until September 2016, when the Veteran underwent a VA audiological examination.  Puretone testing results were as follows:  
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	105 	105	105	105	105
LEFT	15 	20	25	60	65


The VA examiner also found that the Veteran’s speech recognition ability (Maryland CNC word list) was 100 percent in his left ear, but could not be read in his right ear.  The examiner reviewed the Veteran’s statements and the claims file, noting his assertion that he experienced sudden total hearing loss in his right ear in 2007.  Although the examiner diagnosed sensorineural hearing loss in both ears, she opined that his right ear hearing loss was less likely than not related to service.  This is because the Veteran reported sudden total hearing loss following a spell of dizziness in 2007.  The dizziness resolved after two weeks, but the hearing loss did not.  Based on the fact that this episode occurred two decades after separation, the examiner concluded that the sudden total hearing loss in the Veteran’s right ear was not likely due to noise exposure during service.   
After careful consideration of the claims file, the Board concludes that the evidence clearly establishes the existence of a hearing loss disability in the Veteran’s right ear during service.  
The audiological testing conducted during the Veteran’s enlistment examination in April 1982 does not reflect puretone thresholds of 40 decibels or greater at either 500, 1000, 2000, 3000, or 4000 Hz in his right ear.  Similarly, there is no evidence that the auditory thresholds in the Veteran’s right ear were 26 decibels or greater for at least three of the aforementioned frequencies at the time of enlistment.  
However, by May 1985, the Veteran exhibited puretone thresholds of 45 decibels at 3000 Hz and 50 decibels at 4000 Hz.  Likewise, audiological testing conducted during the Veteran’s September 1987 separation examination revealed a puretone threshold of 50 decibels at 4000 Hz.  As such, the evidence of record affirmatively demonstrates that the Veteran developed a hearing loss disability in his right ear during service.  
These findings contrast with the opinion of the September 2016 VA examiner, who concluded that the Veteran did not develop a hearing loss disability in his right ear until 2007.  Based on the Veteran’s statements during the examination, she concluded that his right ear hearing loss was less likely than not related to service.  Nonetheless, the Board notes that the Veteran has only claimed to experience total hearing loss in his right ear since 2007.  Although the Veteran may have completely lost hearing in his right ear decades after separation, the evidence of record clearly shows that he developed a hearing loss disability in his right ear during service.  
In summary, the objective evidence of record confirms that the Veteran developed a hearing loss disability in his right ear during service.  Accordingly, service connection for right ear hearing loss is granted.    
II.	Tinnitus
The Veteran seeks service connection for tinnitus, which he traces to events experienced in service.  According to the Veteran, he was exposed to loud noises from a 50-caliber gun mount in the course of his military duties.  He claims to have experienced ringing in his ears after life-fire exercises.  See November 2016 correspondence.   
For chronic diseases like tinnitus, the second and third elements of the service connection analysis may be established by showing continuity of symptomatology.  38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1331.  Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (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.”  See Barr, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).  
The Veteran’s service treatment records are devoid of any references to tinnitus or ringing in the ears.  Indeed, although his September 1987 separation examination confirms the existence of a hearing loss disability in his right ear at the time of separation, it does not reflect any complaints of tinnitus.      
There is no further indication of tinnitus in the record until September 2016, when the Veteran was afforded a VA audiological examination.  Here, the Veteran reported that he developed tinnitus in 2007 after experiencing total hearing loss in his right ear.  Based on this evidence, the examiner opined that it was less likely than not that the Veteran’s tinnitus was the result of in-service noise exposure.  This is because he indicated that his tinnitus did not begin until 2007, which was nearly two decades after separation.      
After careful consideration of the claims file, the Board finds the evidence is in equipoise concerning the etiology of the Veteran’s tinnitus. 
The Board notes that the opinion of the September 2016 VA audiological examiner, which is the only statement from a medical professional in the claims file addressing the etiology of the Veteran’s tinnitus, found that this condition is less likely than not related to his service.  This conclusion was based on the fact that the Veteran associated his tinnitus with his right ear hearing loss, which the examiner concluded did not develop until decades after service.  However, as noted in the previous section, the Board has found affirmative evidence that the Veteran developed a hearing loss disability in his right ear during active service.  As such, the Board finds that the opinion of the September 2016 VA audiological examiner is inconsistent with the evidence of record.    
Nonetheless, the Veteran still bears the burden of proof to substantiate every element of his claim for service connection, including nexus.  Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997).  The Board notes that the Veteran is competent to provide evidence regarding matters that can be perceived by the senses and, in some instances, provide an opinion as to the etiology of such conditions.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Tinnitus is a common malady, the symptoms of which lay persons may identify.  Therefore, the Board accepts the testimony of the Veteran, affirming that his tinnitus began during service.
Given the evidence showing the existence of a current disability that manifested during service, the Board finds that upon resolution of reasonable doubt in favor of the Veteran, the evidence is in relative equipoise as to whether the Veteran’s tinnitus satisfies the requirements of the 3-part test set forth in Hickson.  As such, he is entitled to service connection for tinnitus. 

 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	MJS, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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