Citation Nr: 1639172 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 12-24 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The appellant was a member of the Wyoming National Guard between November 1965 and November 1971. During that time, the appellant had a verified period of active duty for training (ACDUTRA) from June 18, 1966 to October 28, 1966 and periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that denied the appellant's claims of entitlement to service connection for bilateral hearing loss and tinnitus. In July 2016, a Board videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the appellant has bilateral hearing loss disability as a result of ACDUTRA service. 2. There is at least an approximate balance of positive and negative evidence as to whether the appellant has tinnitus as a result of ACDUTRA service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the appellant, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). 2. Resolving doubt in favor of the appellant, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In light of the favorable decision to grant service connection for the appellant's claims below, a discussion of the VA's duties to notify and assist is not necessary. Hearing loss and tinnitus Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or an injury incurred or aggravated while performing inactive duty for training INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.304 (2015). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The appellant contends that he has bilateral hearing loss disability and tinnitus that is attributable to significant noise exposure during service. He asserts exposure to acoustic trauma from his duties as a machinist during his ACDUTRA period and following INACDUTRA periods over his six years of service in the National Guard (one weekend per month). The appellant has indicated that he started to have problems with hearing loss and tinnitus during his period of ACDUTRA and that these problems have continued and worsened over time. The Veteran's National Guard military personnel records indicate that the appellant's military occupational specialty was a machinist and his DD-214 indicates that he completed machinist coursework during his period of ACDUTRA. The Board finds the appellant's assertions are consistent with the circumstances of his service and he was exposed to significant noise. The Veteran has a current diagnosis of bilateral hearing loss disability under 38 C.F.R. § 3.385 and tinnitus. See October 2010 private audiogram (bilateral hearing loss disability for VA purposes) and March 2011 VA examination (tinnitus and left ear hearing loss disability for VA purposes). Therefore, the remaining question is whether there is a nexus between the appellant's current hearing loss and/or tinnitus and ACDUTRA service. The record contains both positive and negative evidence regarding the etiology of the appellant's current hearing loss disability and tinnitus. Service treatment records (STRs) show no hearing or tinnitus related complaints or diagnosis. Although the appellant is not competent to provide opinions regarding the etiology of his hearing loss disability or tinnitus, he provided competent lay statements describing his noise exposure and symptoms of ringing in his ears while on ACDUTRA. A positive nexus opinion was provided by a private audiologist in a June 2013 letter. The audiologist highlighted the Veteran's military duties and resulting noise exposure noting that, as conceded by the VA, his duties could cause acoustic trauma and damage to the hearing nerve. In the Veteran's case, although he may not have had hearing loss at his exit from the service, the damage was already done; it could take decades to manifest into measureable hearing loss and tinnitus in the ears. In support of this opinion, the Veteran submitted an article from The Journal of Neuroscience from November 11, 2009 which supports the plausibility of delayed onset hearing loss and tinnitus; however, the article is not specific to the Veteran. In contrast, a negative nexus opinion was provided by the March 2011 VA examiner. The VA examiner supported his opinion by highlighting a lack of any significant change in auditory thresholds from audiometric testing conducted in STRs from 1965 to 1968 and the Veteran's lay statements that tinnitus had occurred for the past ten years, not prior, when asked specifically. Based on the aforementioned evidence, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the appellant's bilateral hearing loss and tinnitus was caused by his period of ACDUTRA service. Thus, resolving doubt in favor of the appellant, the Board concludes that service connection must be granted for the appellant's bilateral hearing loss disability and tinnitus. ORDER Entitlement to service connection for hearing loss disability is met. Entitlement to service connection for tinnitus is met. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs