Citation Nr: 1642675 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 14-28 867A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to July 1970. Service records show that he served in Vietnam, and was awarded the Silver Star, Bronze Star, and Purple Heart medals, among other awards, and that he is entitled to wear the Combat Infantryman Badge. This appeal to the Board of Veterans Appeals (Board) arose from an April 2012 rating decision in which the RO denied service connection for, among other disabilities, the Veteran's bilateral hearing loss and tinnitus. The Board notes that the Veteran legally changed his name. See court filings dated in July 2012. The correct name is reflected on the front of this decision. FINDINGS OF FACT 1. The Veteran is a combat Veteran. 2. After resolving reasonable doubt in the Veteran's favor, bilateral hearing loss is related to active duty service. 3. Bilateral tinnitus is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for establishing service connection for bilateral tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable actions taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for "other organic disease of the nervous system" (hearing loss) when manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In the case of any Veteran who engaged in combat with the enemy in active service during a period of war, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory law or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such; and shall resolve every reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 1154(b). 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, 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 threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran exhibits bilateral sensorineural hearing loss pursuant to the VA regulations outlined in 38 C.F.R. § 3.385 and bilateral tinnitus. See December 2010 VA audiology examination report. The Veteran avers that he was exposed to acoustic trauma during active service, including close proximity to an 155-millimeter tank gun when it fired, and other firefights. In addition, in statements associated with his claim, and in his substantive appeal, he stated that he experienced symptoms of hearing loss, ringing in his ears, and distortion at the time of his in-service exposure to acoustic trauma, and that these symptoms have continued from then to the present. The Veteran's DD Form 214 reflects that his military occupational specialty was light weapons infantryman. As noted above, service personnel records show that he served in Vietnam and that he was awarded the Silver Star, Bronze Star and Purple Heart Medals, the Air Medal, and the Combat Infantryman Badge-among other awards and ribbons. Accordingly, the Board thus recognizes that the Veteran engaged in combat with the enemy and accepts his statements that he suffered acoustic trauma in service. The Board also accepts that he noticed a decrease in hearing acuity and that he experienced a ringing in his ears and hearing distortion during such service. 38 U.S.C.A. § 1154(b). Service treatment records reflect no findings of ear or hearing impairment at his October 1968 entrance to active service, and no complaints of, or treatment for, hearing loss during service. However, the Veteran's July 1970 report of medical history at discharge reflects complaints of ear, nose and throat trouble, and of hearing loss. The Veteran's report of medical examination at discharge, dated in the same month, reflects no findings of any ear or hearing impairment. Thereafter, a May 2010 private audiogram shows complaints of tinnitus and a history as reported by the Veteran of hearing loss for 40 years, post military. In December 2010, the Veteran underwent VA examination. As noted above, the report audiometric findings establishing bilateral hearing loss within the meaning of 38 C.F.R. § 3.385. In addition, the examiner reported that the Veteran complained of bilateral tinnitus. The Veteran reported onset of hearing impairment during active service upon exposure to noise from firearms in firefights and from a 155 millimeter tank going off. His post-service noise exposure included from work as a steel cutter, a job he held for three months and during which he used hearing protection. He also reported working odd jobs in hardware, dry cleaning, digging ditches, sheet metal and assembling golf carts as well as working in the U.S. Post Office for 34 years. In these positions, hearing protection was offered but not required. He answered in the negative to questions about recreational hunting and the recreational use of firearms, motorized vehicles, and power tools. Concerning etiology of the Veteran's hearing loss, the examiner opined that the condition was not due to noise exposure during military service. The examiner explained that a review of the Veteran's reports of medical examination at enlistment and separation show hearing within normal limits. According to a study conducted in 2010, the examiner observed, Veterans and non-Veterans were found, essentially, to be equally likely to have hearing loss and that this hearing loss is likely to increase or worsen with age. Thus, the examiner stated, it would difficult to attribute the Veteran's current hearing impairments solely to the Veteran's military noise exposure without considering other factors which affect hearing loss such as aging and the history of noise exposure from occupational and recreational activities 40 years after his military service. The examiner noted the Veteran's post-service occupations of working in hardware, as a dry cleaner, digging ditches, in sheet metal and assembling golf carts, as well as his 34 years with the U.S. Post Office, and that the Veteran reported hearing protection was offered but not required. Therefore, the examiner stated, the etiology of the Veteran's current hearing loss due to noise exposure during his military service cannot be established. Concerning etiology of the Veteran's tinnitus, the examiner opined the condition is not due to noise exposure during military service. The examiner explained that service treatment records show no complaints, treatment or diagnosis of tinnitus. Moreover, the etiology of tinnitus is at least as likely as not secondary to the presence of a measurable hearing loss. Thus, if the Veteran's hearing loss was service-related, the etiology of the tinnitus would be at least as likely as not related to the noise exposure during military service. However, the Veteran's service treatment records reveal the Veteran's hearing to be within normal limits in both ears at the time of separation. Therefore, the examiner stated, the Veteran's tinnitus is not service-related. After review of the evidence, the Board finds the December 2010 VA opinion concerning the etiology of the claimed bilateral hearing loss and bilateral tinnitus to be of less probative value than the Veteran's statements. First, the examiner relies heavily on the fact that the Veteran's report of examination at separation reflects audiometric findings within normal limits. While this is so, in itself, the absence of audiometric findings of hearing loss within the meaning of the regulatory criteria does not preclude service connection for hearing loss. See Ledford, supra. Moreover, and contrary to the examiner's assessment of the Veteran's medical record, service treatment records do reveal complaints of ear, nose and throat trouble, and of hearing loss. The Veteran reported these hearing impairments in his report of medical history at discharge. The fact that the VA examiner did not discuss the Veteran's in-service complaints of hearing impairment-or the consistency of the Veteran's statements concerning the onset of his hearing impairment-weighs against the probative weight of the opinion. In addition, absent such discussion of these facts, the examiner's general discussion of study findings tending to show that veterans and non-veterans are equally likely to have hearing loss that increases with age simply cannot be found to relate to this Veteran's precise situation. Finally, the Board notes the examiner's apparent emphasis on the Veteran's post-service occupational noise exposure. However, in doing so, the examiner emphasizes the odd jobs the Veteran performed in which hearing protection was offered but not required. Close review reveals that the Veteran reported working as a steel cutter for three months, in which he stated he used hearing protection, and that his employment with the U.S. Post Office was for 34 years. From these statements, it can be inferred that a) the Veteran was making a distinction between work in which hearing protection was required and that in which it was not-and he knew the difference, and b) of the 40 years since his discharge, 34 had been in employment with the U.S. Post Service, in which he reported hearing protection was not required. Thus, it may be construed that the majority of the Veteran's post-service time was spent in an environment in which hearing protection was not required, and that he used hearing protection in other employment in which it was required. Nevertheless, the absence of the examiner's discussion of such variables, again, weighs against the probative value of this opinion. In conclusion, the Board simply cannot find the December 2010 VA opinion to be probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Dalton v. Peake, 21 Vet. App. 23 (2007); Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) and Sklar v. Brown, 5 Vet. App. 140 (1993). Second, the Board finds the Veteran to be a credible witness. Not only has the Board accepted the veracity of the Veteran's statements concerning his exposure to acoustic trauma and experiencing hearing impairment in service; but the Board also observes that the Veteran's statements are consistent with his report at separation and throughout this appeal. The record shows that the Veteran has consistently reported symptoms of hearing impairment that occurred after his exposure to acoustic trauma in combat. This is reflected in his complaints of hearing loss and impairment in his report of medical history at separation, and his reports of hearing loss, ringing in his ears, and of distortion in private and VA audiological examinations. An inability to hear well, hearing ringing in one's ears, and hearing with distortion are symptoms the Veteran is competent to observe and attest. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given the reduced probative value in the December 2010 negative VA opinion and the Veteran's competent and credible statements that he incurred his hearing disabilities during combat, which is consistent with the circumstances and hardships of his service, the Board will resolve reasonable doubt in favor of the Veteran as to whether his hearing loss and tinnitus are related to service. The Board notes that it could remand for an adequate VA opinion that addresses the inadequacies noted in the December 2010 opinion discussed above. However, in these circumstances, the lay statements of this combat Veteran indicating a relationship between his current hearing loss and tinnitus, and the acoustic trauma sustained in combat, is of greater probative value than the inadequate medical opinion. As such, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C.A. §§ 1154(b), 5107(b); 38 C.F.R. § 3.303(a). ORDER Entitlement to service connection for bilateral hearing is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs