Citation Nr: 1753770 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 13-22 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1968 to October 1969, including service in Vietnam. His awards and decorations include the Bronze Star Medal, Army Commendation Medal, National Defense Service Medal, Vietnam Campaign Medal, and the Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. The Board requested an advisory medical opinion from the Veterans Health Administration (VHA) in January 2017. The Board finds that the VHA opinion is adequate for adjudication purposes as the clinician reviewed the history and provided an opinion supported by a rationale. Although pursuant to 38 C.F.R. § 20.903(a), the Veteran and his representative must be given notice of the VHA opinion and be afforded a 60 day period to respond, the Board finds that the Veteran has not been prejudiced in this regard in light of the favorable decision that follows, which represents a full grant of the benefits being sought. AB v. Brown, 6 Vet. App. 35, 39 (1993). This appeal was processed using the Veterans Benefits Management System and the Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifested in service and is attributable to service. 2. The Veteran's tinnitus manifested in service and is attributable to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the evidence of record supports a grant of service connection for bilateral hearing loss and tinnitus. First, there is evidence of a current disability. A March 2012 VA examiner diagnosed sensorineural hearing loss in the right ear and mixed hearing loss in the left ear and audiometric testing revealed a hearing loss disability that meets the criteria under 38 C.F.R. § 3.385. See 38 C.F.R. §§ 3.303(a). See also February 2017 private audiogram. Additionally, the Veteran has indicated that he has tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303(a); 38 U.S.C.A. § 1154(b); Shedden, 381 F.3d at 1167. Specifically, the Veteran testified that his military occupational specialty was in the infantry. He was exposed to in-service noise because his base camp was located next door to an artillery unit. Additionally, he frequently used claymore mines, grenades, and M16s for different assigned missions. He reported that he did not wear any hearing protection during service. See Transcript of Hearing at 3-4. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current hearing loss and tinnitus are related to service. The law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C.A. § 5107. Although there is evidence against the claim, an otolaryngologist (Dr. J. F.) opined in a September 2017 VHA opinion that it was at least as likely as not that in-service noise exposure contributed to Veteran's current hearing loss (given the types of noise that the Veteran was exposed to during service). Dr. J. F. pointed out that the Veteran's separation examination did not test high frequencies and, therefore, a drop in high frequency could have been missed. Additionally, Dr. J. F. opined that tinnitus was generally related to acoustic trauma. While hearing loss could occur from congenital losses, severe infections or medications, Dr. J. F. stated that acoustic trauma was by far the greater and more likely cause of tinnitus, if left to speculation. She added that it was well known that the intensity and duration of noise were both factors in hearing loss. Further, hearing loss from noise exposure could be cumulative. If the Veteran had some high frequency loss that was not tested during service, Dr. J. F. noted that it would result in a more debilitating hearing loss sooner as compared to not having any noise induced hearing loss to begin with. In support of this opinion, Dr. J. F. reviewed the Veteran's service and post-service treatment records, March 2012 VA examination results, and relied on medical research and her own medical expertise, knowledge, and training. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran's bilateral hearing loss and tinnitus are related to his in-service noise exposure. See Gilbert, 1 Vet. App. at 49, 55 ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs