Citation Nr: 1616928 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 11-01 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral sensorineural hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an acquired psychiatric disorder to include generalized anxiety disorder and major depressive disorder (MDD), to include as due to tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1959 to August 1963. This matter is before the Board of Veteran's Appeals (Board) on appeal from a April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2016. A transcript of the hearing is associated with the claims files. The records reflect that after the Statement of the Case (SOC), the Veteran submitted additional relevant evidence to the Board. Although a Supplemental Statement of the Case (SSOC), was not issued following receipt of this evidence, given the favorable disposition of the Veteran's claims, the Board finds that the Veteran is not prejudiced by the Board reviewing the evidence in the first instance and adjudicating his claim. The record reflects that the Veteran has been diagnosed with MDD and generalized anxiety disorder. The Board has recharacterized his claim more generally as one of entitlement to service connection for an acquired psychiatric disorder to include generalized anxiety disorder and MDD. See Clemmons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The Veteran's record before VA consists of an electronic record located in Veterans Benefits Management System (VBMS)/Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's current bilateral sensorineural hearing loss disability is causally related to his active military service. 2. The evidence is in equipoise as to whether the Veteran's tinnitus is causally related to his active military service. 3. The Veteran's acquired psychiatric disorder, to include MDD and generalized anxiety disorder, was caused by the Veteran's service-connected tinnitus. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for service connection for a bilateral sensorineural hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 2. Resolving all doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. The criteria for service connection for an acquired psychiatric disorder, as secondary to a service-connected disability, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the fully favorable decision as to the issues of service connection for bilateral hearing loss, tinnitus and anxiety disorder, no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Legal Criteria and Analysis Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in-service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015). Regarding claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (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 Court further opined that 38 C.F.R. § 3.385 (2015), operates to establish when a hearing loss disability can be service connected. Id. at 159. 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 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Bilateral hearing loss and Tinnitus The Veteran is seeking service connection for a bilateral hearing loss disability and tinnitus. The Veteran alleges that his hearing loss and tinnitus are the result of his active military service, including in-service noise exposure. After a careful review of the evidence of record, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. First, the Veteran has current bilateral sensorineural hearing loss. The Veteran was afforded a VA audiological examination in March 2009. At the time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 55 75 80 LEFT 25 30 50 90 95 Average puretone thresholds were 61 in the right ear and 66 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent bilaterally. Hearing acuity levels in both of the Veteran's ears meet the requirements of 38 C.F.R. § 3.385 (2015), three of the auditory frequencies in both ears are 40 decibels or higher. As for tinnitus, the Veteran has consistently stated that he currently has tinnitus, which he is competent to report, as tinnitus is a disability that is fully observable through the senses and requires no specialized testing to diagnose. See Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, his lay statements satisfy the first element of service connection, a current disability. Second, the Veteran's DD-214 show that the Veteran served as a Field Radio Operator. Personnel records show the Veteran served as Wireman and Tactical Air Control Party (TACP) Radio Operator. The RO has conceded noise exposure in service given the Veteran's specialty in service. Indeed, the RO noted that the Veteran's specialty indicated hazardous noise exposure while calling in coordinates for mortars. The Board will accept that the Veteran was exposed to hazardous noise in service. Therefore, the second element of service connection is met, as the Veteran has consistently alleged that his bilateral hearing loss disability and tinnitus were caused by noise exposure in service. Finally, concerning the third element of service connection, evidence of a nexus between the Veteran's currently diagnosed bilateral hearing loss and tinnitus and his service, the Board notes the evidence of record consists of credible statements from the Veteran, and competent medical opinions regarding the likely etiology of the Veteran's bilateral hearing loss and tinnitus. As noted, the Veteran underwent a VA examination in March 2009. As to the Veteran's hearing loss, the VA examiner opined that "[i]t is not possible for this examiner to state whether or not current hearing loss began while in the military without resort to mere speculation." The examiner reasoned that the whisper test conducted upon separation was not reliable evidence of normal hearing or hearing impairment. As to the tinnitus, the examiner opined that tinnitus was at least as likely as not due to hearing loss. This is not a situation in which the Board is left with a non-opinion, as the examiner offered a rational reason as to why an opinion could not be offered. Thus, the Board finds that it is entitled to probative weight. A private opinion of February 2016 has been made part of the claim file. The audiologist stated that she was provided with a thorough case history. She noted she reviewed audiograms starting in 2005 and based on the previous case history and test findings from 2005 to 2015, "it appears that [the Veteran] has hearing losses of a degree and pattern commonly associated with intense noise exposure. His tinnitus is reportedly in the same range as the hearing loss: high frequency and at extremely loud levels. It is more likely than not that the hearing loss and tinnitus he experiences, which has caused him to retire early, is due to his military-related intense noise exposure." The opinion is based on accurate facts and provides a solid rationale for the conclusion; therefore, it too is entitled to probative weight. The Board finds that the evidence is in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus were incurred in service. The March 2009 VA examiner's opinion offered a reasoned conclusion, which weighs against the claim. By contrast, the private opinion of February 2016 relates both the tinnitus and hearing loss to noise exposure in service, and provides a solid reason for concluding the same. This weighs in favor of the claim. Moreover, the Board notes that the Veteran is competent to state that his tinnitus started in service which he has consistently stated. The Board has found him credible in his allegations. Therefore, as the evidence is in relative equipoise, the Board resolves all reasonable doubt in the Veteran's favor, and finds that it is at least as likely as not that his bilateral hearing loss and tinnitus are related to active duty service. Service connection is warranted. B. Anxiety Disorder The Veteran seeks service connection for an acquired psychiatric disorder. He argues that his tinnitus has caused him anxiety and depression. In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was afforded a VA examination in March 2009. At the time, he was diagnosed with Major Depressive Disorder (MDD) it was noted that the MDD symptoms include increased anxiety. As to the etiology of the MDD, the examiner, after an examination of the Veteran, opined that "it is the opinion of this examiner that [the Veteran's] Major Depressive Disorder is a direct result of his ongoing and severe tinnitus." The examiner noted that careful clinical history reveals that the Veteran's anxiety symptoms occur as an integral part of an overall MDD as, for example, his difficulty in thinking and concentrating due to his MDD as well as his tinnitus cause him anxiety. In a March 2016 letter, the Veteran's private psychiatrist, Dr. M.L., stated that the Veteran "is diagnosed with Generalized Anxiety Disorder and Major Depressive Disorder; diagnoses which are often sequela of chronic tinnitus. . . it is well established that people with chronic Tinnitus have higher levels of anxiety and depression. While we cannot say for sure, it can be fairly said that there is a great probability that his Tinnitus has caused his anxiety and depressive disorders, which in turn has affected both his personal and professional life over many years." As noted above, service connection for tinnitus is now in effect. Given that there are well-reasoned medical opinions to the effect that the Veteran's acquired psychiatric disorder, whether characterized as MDD or generalized anxiety disorder, is secondary to his now service-connected tinnitus, and given that there is no medical evidence to the contrary, the Board finds that service connection for an acquired psychiatric disorder is warranted on a secondary basis. 38 C.F.R. § 3.310. ORDER Service connection for a bilateral sensorineural hearing loss disability is granted. Service connection for tinnitus is granted. Service connection for an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder, is granted. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs