Citation Nr: 1751816 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-16 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Brandt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were before the Board in December 2013 and January 2015, when they were remanded for further evidentiary development. They have since been returned to the Board for adjudication. In a June 2014 letter the Veteran stated that he would provide additional testimony and evidence at his Board hearing. The Board sent a clarification letter dated December 2014 asking if the Veteran would like to be scheduled for a Board hearing. In a December 2014 letter, the Veteran requested to withdraw his request for a hearing. As such, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2016). FINDINGS OF FACT 1. The Veteran's tinnitus is related to acoustic trauma incurred during active service. 2. Bilateral sensorineural hearing loss was not first manifested during active duty service or the first post-service year; the weight of the competent and credible evidence is against a finding that hearing loss is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in July 2010 and August 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further the Board finds that the directives of the prior remands have been substantially complied with, and the Board may proceed with a decision on the issues. See Stegall v. West, 11 Vet. App. 268 (1998). II. Legal Criteria The Veteran contends that he has bilateral hearing loss and tinnitus related to loud noise exposure during his active military service in the Republic of Vietnam. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Tinnitus is deemed an organic disease of the nervous system, which is a chronic disease listed under 38 C.F.R. § 3.309(a), where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). While hearing loss disability is not a disease listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature; hence, the Veteran's hearing loss may be considered for service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307 and 3.309. Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (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, discussed below, then 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). III. Tinnitus The Veteran was afforded a VA examination in September 2010 and the examiner noted that the Veteran had tinnitus. Although the Veteran was unable to provide a date of onset of the tinnitus, he stated that it has been present for many years. Therefore, the Board finds the first element under Shedden, a present disability, is met. Next, the evidence of record supports a finding that the Veteran sustained an in-service injury from acoustic trauma. Although the Veteran served as a pharmacist in Vietnam, in a June 2010 statement, he explained that the 3rd Field hospital he was stationed at was directly below the helicopter landing pattern for the nearby Ton Son Nhut Air Force Base. He also explained that he was in close proximity to enemy satchel charges that exploded within the compound and was regularly exposed to small arms fire. Service personnel records indicate that the Veteran served in Vietnam from December 1970 to August 1971 and was stationed at the 3rd Field Hospital. Based on the service records and the Veteran's credible statements, the Board concludes that the Veteran's noise exposure is consistent with the circumstances of his service, satisfying the second element of a service connection claim. With regard to the third element of service connection, a nexus between the claimed in-service disease or injury and the current disability, the Board notes that the September 2010 medical opinion and February 2014 addendum opinion are not in support of this claim, as they conclude that tinnitus was unrelated to service due to a lack of in-service complaints and normal audiological examinations at entrance and separation from service. Further, the February 2014 addendum opinion stated that tinnitus etiology during active service cannot be determine with reasonable certainty and determined that the Veteran's tinnitus was likely related to post military events because there was no shift in hearing at the time of separation that is consistent with reported tinnitus. Although the Veteran informed the September 2010 VA examiner that he could not recall when his tinnitus began, he reported in his June 2010 claim that since serving in Vietnam, he had constant ringing in his ears. Such lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board concludes that the Veteran is credible in his report that he experienced ringing in his ears since his military service. The Board observes that there is evidence for and against the claim. As the evidence for and against the claim is in relative equipoise, the Board will resolve reasonable doubt and grant the claim. See Fountain, 27 Vet. App.at 258; see also U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(b); Gilbert, 1 Vet. App. at 53. IV. Bilateral Hearing Loss Post-service audiometric studies conducted during a September 2010 VA audiological examination showed that the Veteran has bilateral sensorineural hearing loss that meets the criteria under 38 C.F.R. § 3.385. Thus, the question is whether his current hearing loss is related to active service. See 38 C.F.R. § 3.303. The Veteran contends that his in-service noise exposure was due to low flying aircraft, enemy satchel charges, and small arms fire while stationed in Vietnam. The Veteran's DD Form 214 indicates that he served in Vietnam and was stationed at the 3rd Field Hospital near the Air Force Base. As being exposed to noise from aircraft appears consistent with the circumstances of his service, the Board will concede that the Veteran has in-service noise exposure. The Board has reviewed all service treatment records and the September 2010 VA audiological examination report and its February 2014 addendum. The preponderance of competent and credible evidence shows that bilateral hearing loss was not demonstrated in service, that bilateral hearing loss was not compensably manifested within a year of separation from active service, and that there is no nexus between the current bilateral hearing loss and service, to include in-service noise exposure. The Veteran's service treatment records show no hearing loss in service. There were no in-service complaints reported to any medical personnel pertaining to difficulty hearing and the Veteran's August 1971 separation examination showed no hearing loss. The first medical indication of a hearing loss disability for VA purposes was a May 2010 private treatment record, which diagnosed the Veteran with mild to moderately severe bilateral hearing loss. The September 2010 VA examiner opined that the Veteran's hearing loss was not caused by or a result of noise from helicopters or the explosions of satchel bags. The rationale for the opinion was that based on a review of the claims file, hearing was found to be well within normal limits at the time of enlistment and separation. There was not a significant threshold shift during this time. Accordingly, the examiner concluded that current hearing loss was not caused by or the result of noise exposure during service. In the February 2014 addendum, the examiner stated that it was less likely than not that the Veteran's hearing loss was incurred in or caused by the claimed in-service injury or event. Based on the claims file review, hearing was found to be within normal limits at the time of enlistment and separation. The examiner reasoned that although the definitive studies to address whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure, have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner referenced a 2005 Institute of Medicine study to support the conclusion. Therefore, the current hearing loss is less likely than not caused by or a result of an event in military service. The Board affords this opinion great probative value as it is based on a review of the relevant evidence of record and is supported by a rationale. The Board acknowledges the Veteran's assertions that his hearing was initially damaged due to his service in Vietnam. However, he is not competent to determine whether in-service noise exposure caused his current bilateral hearing loss. See Jandreau, 492 F.3d at 1377. Moreover, to the extent the Veteran has asserted a continuity of symptomatology since service, the evidence shows that the Veteran did not complain of hearing problems until 2010, approximately 39 years after discharge from service. The Board finds that his lack of reports and findings of hearing loss at the time of his separation from service weighs against his later June 2010 assertion that he has experienced hearing loss since his service separation. See August 1971 separation examination and report of medical history; see Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence can have greater probative value than later inconsistent history as reported by the claimant). Accordingly, his assertions of subjective hearing loss since service are afforded decreased probative value. The Board ultimately finds the most probative evidence of record regarding the etiology of his bilateral hearing loss to be the opinions of the competent VA examiners. As such, the competent, probative evidence does not support a finding that bilateral hearing loss is related to the Veteran's active service. Absent competent and reliable lay or medical evidence relating this claimed disability to service, and in consideration of the VA opinions discussed above, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs