Citation Nr: 1528038 Decision Date: 06/30/15 Archive Date: 07/09/15 DOCKET NO. 14-01 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from September 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The Veteran experienced noise exposure during service; current audiometry testing shows a hearing loss disability for VA purposes and a diagnosis of tinnitus; and the evidentiary record makes it equally likely as not that the hearing loss and tinnitus are a result of the in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a bilateral hearing loss disability are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014). 2. The criteria to establish service connection for tinnitus are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran maintains that he has bilateral hearing loss and tinnitus as a result of noise exposure during active service in Vietnam. Because the evidence is in relative equipoise in demonstrating such a relationship, the Board agrees. A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Hickson v. West, 12 Vet .App. 247, 253 (1999). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. B. Discussion 1. Current Diagnosis In this case, the record on appeal confirms a present diagnosis of a bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Specifically, a VA audiological examination conducted in October 2011 shows auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 35 80 LEFT 5 5 10 65 95 Because there are auditory thresholds greater than 40 decibels in each ear, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. This same VA examination reflects a diagnosis of tinnitus. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met as to each claim. See Walker, 708 F.3d at 1337. 2. In-Service Incurrence of Injury Next, the evidence of record makes it is as likely as not that the Veteran suffered acoustic trauma during service. Specifically, the Veteran credibly and competently wrote in his January 2014 VA Form 9 that he worked as a counter-mortar specialist during the last 4-5 months he was in Vietnam, which was within 30 meters of a 155 towed artillery company. The Veteran's DD Form 214 does reflect an MOS of 17B20, FA Radar Crewman, and his remaining service records confirm that he was assigned to an artillery unit during service. The available service treatment records (STRs) tend to establish that hearing loss was not present during service. In fact, the Veteran affirmatively denied a history of hearing loss upon separation examination. (He was not asked on this form whether he had tinnitus (or symptoms thereof).) He competently and credibly asserted in his February 2013 notice of disagreement (NOD) that he himself completed this form. His denial of hearing loss at service separation is affirmative evidence tending to establish the absence of such symptomatology during service. His denial of hearing loss at separation, however, is ultimately nondeterminative, because the question is not whether he had observable (or even measurable) hearing loss at service separation, but whether he had noise exposure. Because he did, the second element of a service connection claim, an in-service injury, is established. See Walker, 708 F.3d at 1337. 3. Nexus Finally, the record contains evidence making it at least equally likely as not that the current hearing loss disability and tinnitus are a result of the noise exposure during service. Hearing Loss Specifically, a private audiologist in April 2011 offered an opinion that the Veteran "has a high frequency, sensorineural hearing loss, most consistent with his noise exposure history," which was noted to involve "combat noise and artillery fire" during service. The Board finds that this opinion tends to increase the likelihood that there is a relationship between the noise exposure during service and the current hearing loss. Albeit quite brief, the audiologist provided an understandable and rational basis for the opinion, which relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The only evidence tending to conflict with this favorable evidence is the opinion of the VA examiner who, in October 2011, concluded that the Veteran's hearing loss was less likely than not related to service because the Veteran's "hearing was normal upon separation from [service]." The VA examiner did not explain why the "normal" hearing at separation compelled the conclusion that, as a medical matter, the Veteran's current hearing loss could not be a result of the in-service noise exposure. Overall, the Board can identify no compelling reason to find the VA examiner's opinion more probative than the private audiologist's opinion on the nexus element. Both considered the same facts, which led them to different conclusions. Based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts. Therefore, the benefit of the doubt must apply, and the Board must find that the evidence is in equipoise on the nexus element. Tinnitus Regarding tinnitus, the October 2011 VA examiner opined that the "Veteran stated his tinnitus began while serving in Vietnam therefore, tinnitus is less likely as not (less than 50/50 probability) caused by or a result of military service." The Board notes that this opinion is a non sequitur, and appears to be a typographical error. Earlier in this same examination report, the VA examiner opined that the Veteran's tinnitus was less likely as not related to service because the "Veteran's hearing was normal upon separation from the Army." The Board has trouble reconciling these opinions, which are internally inconsistent and logically flawed. Moreover, while the October 2011 VA examiner noted "normal" hearing at separation, the Board notes that the Veteran was not asked whether he had tinnitus and this was not tested during the clinical portion of the examination. Therefore, there is only an absence of evidence in the separation examination, which is not affirmative evidence that tinnitus was absent. See Fountain v. McDonald, 27 Vet. App. 258, 274 (2015) (A medical report stating that the "veteran did not report tinnitus" cannot be considered evidence of a denial of tinnitus during service or after service); see also AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Therefore, this VA examiner's opinion has no evidentiary value. Supporting a positive nexus, the private audiologist in April 2011 documented the Veteran's complaints of "a 40+ year history of constant tinnitus." The Veteran's complaints of tinnitus since service, which are competent and credible evidence, greatly increase the likelihood of a chronic condition that has been continuous since service. Therefore, the benefit of the doubt must apply, and the Board will find that the evidence is in equipoise on the nexus element of the tinnitus claim. For these reasons, after resolving all reasonable doubt in the Veteran's favor, the evidentiary record is in relative equipoise as to all material elements of each claim. Therefore, service connection is warranted for the bilateral hearing loss disability and tinnitus, and the claims must be granted. Because the benefits being sought on appeal are granted in full, the Board finds that any errors in VA's duties to notify and assist are harmless and will not be discussed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159 (2014). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs