Citation Nr: 1340705 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-33 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from September 1968 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's perfected appeal to the Board via the Form 9, he limited issues of consideration to his service connection claims for bilateral hearing loss and tinnitus. The Veteran provided testimony at a July 2013 videoconference hearing before the undersigned at the RO. A transcript of the hearing is associated with the Veteran's "Virtual VA" electronic claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. FINDING OF FACT The Veteran was exposed to acoustic trauma during service, and the medical evidence indicates his current bilateral hearing loss and tinnitus are attributable to that noise exposure during service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his current bilateral hearing loss and tinnitus are related to acoustic trauma during active service. Specifically, he asserts that he was exposed to noise of various weapons, including M60 machine guns, as a Huey helicopter door gunner without hearing protection. The Board will first examine the Veteran's claim of service connection for bilateral hearing loss. Service Connection for Bilateral Hearing Loss 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 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. At the outset, the Board finds that the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385 based on audiogram results from March 2010 and September 2013, both indicating moderate bilateral sensorineural hearing loss. The most recent September 2013 private examination, audiogram revealed puretone thresholds of 40, 35, 55, 60, and 60 decibels in the right ear and 35, 40, 65, 65 and 65 decibels in the left ear at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hz, respectively. With regard to an in service incurrence, the Board finds that the Veteran was exposed to acoustic trauma in service. Although the Veteran's DD Form 214 shows that his Military Occupational Specialty was an aircraft repair parts specialist, the Veteran testified to volunteer work as a helicopter door gunner. He would shoot a machine gun to "cover" departing soldiers from enemy fire. He reported that he was exposed to heavy noise without hearing protection from the machine gun rounds, return enemy fire, and the turbine engine of the helicopter. The Board finds his contentions regarding military noise exposure to be credible based on service in a combat zone during the Vietnam War as evidenced by receipt of the Vietnam Service Medal and documentation submitted by the Veteran regarding the door gunmen in the Vietnam War. The dispositive issue in this case is whether the Veteran's current bilateral hearing loss disability is related to the in service acoustic trauma. In evaluating this issue, the Board considered two medical evaluations of record each with a nexus opinion, the first is from March 2010 prepared by a VA audiologist and the second is from September 2013 prepared by a private audiologist. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this instance, the Board cannot reasonable conclude that one opinion is more probative than the other. The March 2010 VA audiologist opined that the Veteran's current hearing loss was not caused by or the result of noise exposure in the military. The examiner based this opinion on the Veteran's normal hearing on his May 1970 separation exam. Additionally, she relied upon the Institute of Medicine Report on noise exposure in the military which concluded that there is no scientific support for delayed onset hearing loss weeks, months or even years after the exposure events. In the positive September 2013 opinion, the private audiologist opined that the Veteran's hearing loss was more likely than not caused by or was a result of the Veteran's military service noise exposure. The audiologist relied on the fact that there were no other factors that could be attributed to the Veteran's current hearing loss such as illness, familial history, or significant post-service noise exposure. Both examiners relied on an accurate history from the Veteran as to the extent and types of in-service acoustic trauma. Accordingly, the evidence is in relative equipoise with the Veteran prevailing in his service connection claim for bilateral hearing loss. The Board now examines the Veteran's service connection claim for tinnitus. Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet App. 195, 196 (1996). Service Connection for Tinnitus The Veteran describes his tinnitus as ringing in his ears. While the Veteran reports tinnitus beginning several years post-service, the evidence of record regarding the etiology of the Veteran's tinnitus is scant. Service treatment records do not show any complaints of, or treatment for, ringing in the ears while in service, and there is no record of any post-service complaints of, or treatment for, ringing until multiple decades following service. Nevertheless, lay evidence is competent and sufficient to establish a diagnosis of a condition when a lay person (1) is competent to identify the medical condition; (2) is reporting a contemporaneous medical diagnosis; or (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence may also establish the manifestations of a chronic condition during service, or within a presumptive period; and, when a condition is not chronic and there is no medical evidence of a causal nexus, lay testimony or medical evidence may establish continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). Tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Having reviewed the evidence, the Veteran has consistently attributed his tinnitus to military noise exposure. He has stated that he experienced intermittent ringing in his ears following his helicopter runs, but this ringing became more pronounced within five years following separation. In reporting the onset of his symptoms, the Veteran has not appeared to embellish his accounts, and his testimony and other statements of record are fully credible. Given that the Veteran has credibly described the onset of the symptoms which have since been diagnosed as tinnitus and this condition has progressively worsened over time since service to the present day, a medical opinion of record is not necessary to link the Veteran's currently diagnosed tinnitus to his military service, to include any noise exposure therein. Rather, the Veteran's testimony alone is sufficient. Regardless, the 2013 medical statement included an opinion that the tinnitus is more likely than not related to excessive noise exposure during service. Accordingly, entitlement to service connection for tinnitus is warranted. In light of the favorable decision as it relates to the Veteran's entitlement to service connection, any error by VA in complying with the requirements of VCAA is moot. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs