Citation Nr: 1754934 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-30 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P.S. Rubin, Counsel FINDINGS OF FACT 1. The Veteran has current tinnitus and bilateral hearing loss disability for VA compensation purposes. 2. There is an approximate balance of favorable and unfavorable evidence as to whether the Veteran's tinnitus and bilateral hearing loss disability are the result of hazardous noise exposure from 40mm guns and helicopter engine noise, due to his in-service duties as a deck man and gun mount crew member while serving in the early 1960s with the U.S. Navy. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154(a), 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. Resolving all reasonable doubt in his favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1154(a), 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Veteran had active duty service from July 1961 to July 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2014, the Veteran presented testimony at a Central Office Board hearing in Washington DC before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In an August 2014 Board decision, the Board reopened the Veteran's bilateral hearing loss and tinnitus claims, based on a finding of new and material evidence. In the same August 2014 decision, the Board remanded the underlying service connection issues for further development. In an October 2015 Board decision, the Board denied service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's October 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2016 Order, the Court vacated and remanded the Board's decision for proceedings consistent with a Joint Motion for Remand (Joint Motion). The parties to the April 2016 Joint Motion concluded the Board had failed to substantially comply with its previous remand directives, because the VA audiology opinion the Board had secured in December 2014 was inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Court vacated and remanded the bilateral hearing and tinnitus issues for the Board to provide the Veteran with an adequate VA audiology examination and opinion that would consider favorable medical treatise evidence submitted by the Veteran. Upon return from the Court, the Board sent a letter to the Veteran in April 2016 informing him that he had 90 days to submit additional evidence with an indication as to whether he desired a remand for the RO to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1304 (2017). In May 2017, the Board granted the Veteran a further extension of time to submit additional argument or evidence. In response, in August 2017, the Veteran's attorney submitted a private otolaryngologist opinion and medical treatise evidence, with a waiver of RO consideration. Therefore, the Board accepts this evidence for inclusion in the record and consideration by the Board at this time. II. Law and Analysis The Veteran has contended that he developed tinnitus and bilateral hearing loss as the result of noise exposure during service. Specifically, he has asserted that he was exposed to hazardous noise as the result of his military occupational specialty (MOS) as deck man and gun mount crew member, while serving in the early 1960s with the U.S. Navy. His DD Form 214 and service personnel records (SPRs) confirm that he did serve in this capacity. In particular, he indicates his MOS exposed him to hazardous noise exposure from 40mm guns and helicopter engine noise. As part of a gun mount crew, his duties involved loading ammunition into a gun turret. The 40mm guns were fired as part of training exercises. The Veteran served aboard the USS Liddle and USS Okinawa. He says he did not always wear hearing protection during service. His statements and hearing testimony as to when precisely his hearing loss and tinnitus began have not always been consistent. Post-service, he had noise exposure due to his career as a truck driver from 1966 to 1990, as well as due to occasional hunting. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). According to VA standards, impaired hearing will be considered 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 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that service connection for bilateral hearing loss disability and tinnitus is warranted. The evidence of record is in equipoise. As to the first requirement for a service-connection claim, the Veteran meets the criteria for proof of a current disability. See 38 U.S.C. § 1131. Specifically, the January 2005, October 2006, August 2007, December 2010, and December 2014 VA audiology examination reports revealed bilateral sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. These examination reports also revealed current tinnitus. Thus, the existence of a current disability is undisputed for both issues on appeal. As to the second requirement of in-service incurrence, service treatment records (STRs) dated from 1961 to 1964 are negative for any complaint, treatment, or diagnosis of tinnitus or hearing loss disability under § 3.385 in either ear. However, with regard to an in-service injury, the Department of Defense's Duty MOS Noise Exposure Listing indicates that an MOS as a gun mount crew member and deck hand involved a "high" probability of noise exposure during service. SPRs confirm the Veteran served on the USS Okinawa, which is a helicopter carrier. As part of his duties on the deck of the ship, he clearly was exposed to helicopter engine noise. Also, the Veteran submitted photographs of the gun turrets from the decks of the ships he served on. In-service hazardous noise exposure is therefore consistent with the circumstances of the Veteran's duties in service. See 38 U.S.C. 1154(a); 38 C.F.R. 3.303(a). As to the third requirement of a nexus, post-service, the record is mixed and reflects several favorable and unfavorable medical opinions with regard to the nexus requirement for bilateral hearing loss and tinnitus. With regard to the favorable evidence for a nexus, the record contains an August 1993 private ENT medical opinion; medical treatise evidence regarding the possibility of delayed-onset hearing loss and tinnitus; a September 2009 private ENT medical opinion; a March 2012 private ENT medical opinion; a January 2014 private ENT medical opinion; a partially favorable December 2014 VA audiology examination; and finally, a June 2017 private ENT medical opinion from an otolaryngologist who served in the Navy. These VA and private medical examiners provided probative medical evidence of record establishing a link between the Veteran's current tinnitus and bilateral hearing loss disability and his confirmed hazardous noise exposure during his period of active service in the Navy from 1961 to 1964. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). The Board emphasizes that a claimant may establish direct service connection for a hearing loss disability initially manifest years after separation from service on the basis of probative evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). See also 38 U.S.C.A. 1113(b); 38 C.F.R. 3.303(d). Thus, the lack of evidence of tinnitus or bilateral hearing loss disability per § 3.385 during active service is not fatal to the Veteran's claims; it is merely one factor to be considered. With regard to the unfavorable evidence for a nexus, the record contains negative nexus opinions from January 2005, October 2006, March 2007, August 2007, December 2010, and November 2016 VA audiology examiners and otolaryngologists. These VA medical personnel attributed the Veteran's current hearing loss and tinnitus to the effects of aging and to post-service intervening causes such as his recreational hunting and career as a truck driver. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the above, the Board finds that there is an approximate balance of positive and negative evidence on the bilateral hearing loss and tinnitus issues on appeal. Certain elements of both the positive and negative medical opinions listed above in this case are probative. Both sets of evidence have respective strengths and weaknesses. In such situations, the benefit of the doubt is resolved in the Veteran's favor. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for tinnitus and bilateral hearing loss disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs