Citation Nr: 1752312 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 17-02 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for temporomandibular joint disease (TMJ), to include as secondary to service-connected disability. 4. Entitlement to service connection for a disability manifested by dizziness, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from September 1967 to September 1969. These matters come before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT In giving the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for bilateral hearing loss disability, tinnitus, TMJ/TMD, and a disability manifested by dizziness. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for TMJ/TMD have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 4. The criteria for service connection for a disability manifested by dizziness have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. A pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis Bilateral Hearing loss disability Tinnitus The claims file includes evidence that the Veteran had acoustic trauma in service (See Veteran's statements and DA Form 67-5 Army Officer Efficiency Report for October 1967 - February 1968), evidence of a current hearing loss disability (See January VA examination report), and evidence that his current hearing loss disability and tinnitus are causally related to service. Thus, in giving the benefit of the doubt to the Veteran, the Board finds that service connection for bilateral hearing loss disability is warranted. The Board acknowledges that the claims file includes evidence of a preexisting hearing loss disability for the left ear at the 4,000 Hz level and a VA examination opinion that it is less likely as not that the Veteran's current hearing loss disability is causally related to service. Nonetheless, the Veteran, who is a doctor, has submitted articles on acoustic trauma and hearing loss, and has testified under oath to hearing loss and tinnitus in service and since service. In addition to the Veteran's opinion, the claims file also includes a 2017 private nexus opinion from Dr. Chan. Dr. Chan stated that he reviewed the Veteran's records, and indicated that it was his opinion that the Veteran's hearing loss and tinnitus are related to service. The Board has also considered that the Veteran was a doctor post-service which is not an occupation which is noted to include excessive noise exposure, and that he has denied recreational noise exposure. With consideration of the evidence of record, to include the opinions by Dr. Chan and the Veteran, the Board finds that service connection is warranted for tinnitus and bilateral hearing loss disability. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). TMJ The Veteran is in receipt of service connection for PTSD. He contends that he has been clenching his jaw and grinding his teeth due to stress associated with his PTSD. As noted above, the Veteran is a physician; thus, he has more knowledge than the lay person as to certain medical conditions. In August 2015, Dr. Fischl of Laurelhurst Dentistry found that it is very likely that the Veteran's PTSD is a significant contributing factor to the Veteran's TMD (temporomandibular joint disorder) symptoms. She noted that "PTSD has been strongly linked with many TMD symptoms" and that poor sleep, depression, anxiety, and anger (such as that suffered by the Veteran) has been shown to correlate with increased muscle pain and TMD. The Board finds, based on the foregoing, and in giving the benefit of the doubt to the Veteran, that service connection for TMJ is warranted. Disability manifested by dizziness The Veteran contends that he has intermittent dizziness which can cause him to stumble, and that he had mild symptoms after service but that they have increased in the last ten years. (See October 2015 typed statement.) At the Board hearing, he explained that his dizziness is related to his hearing loss as the labyrinth/inner ear was damaged. According to the Veteran (who is a doctor) the concussion of sound can damage the cilia in the cochlea area of the ear and thereafter, any sudden movement of the head or bending can bring on dizziness. As noted above, the Board has found that service connection for hearing loss disability is warranted. An April 2014 VA clinical record reflects that the Veteran's reported symptoms of vertigo may be related to Meniere's disease, although liver disease "has also been known to contribute to vestibulo-cochlear degeneration.) The Veteran is in receipt of service-connection for non-alcoholic steatohepatitis with cirrhosis (claimed as fatty liver condition). Thus, as the Veteran is in receipt of service connection for bilateral hearing loss disability and a liver disability, and as the evidence includes opinions that the Veteran's dizziness may be due to his hearing loss or to his liver, the Board finds, in giving the benefit of the doubt to the Veteran, that service connection for a disability manifested by dizziness is warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for temporomandibular joint disease (TMJ)/TMD, to include as secondary to service-connected disability is granted. Entitlement to service connection for a disability manifested by dizziness, to include as secondary to service-connected disability is granted. ______________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs