Citation Nr: 1756819	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-06 627	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran appellant had active service in the United States Army from October 1965 to September 1967, including nearly a year in Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus.

In April 2017, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the claims file.  

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into account the existence of this electronic record.


FINDINGS OF FACT

1.  The evidence for and against the appellant's claim is at least in relative equipoise on the question of whether his currently diagnosed bilateral hearing loss is related to acoustic trauma in service.

2.  The appellant's tinnitus is as likely the result of noise exposure in service and the service-connected hearing loss as it is the result of some other factor or factors.



CONCLUSIONS OF LAW

1.  Service connection for bilateral hearing loss is warranted.  38 U.S.C. §§ 1101, 1110, 5102, 5103, 5103A, and 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017).

2.  Service connection for tinnitus is warranted.  38 U.S.C. §§ 1101, 1110, 5102, 5103, 5103A, and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits is codified at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.159, 3.326(a).  Given the fully favorable decision on the matter of service connection for hearing loss and tinnitus contained herein, the Board finds that any defect in the notice or assistance provided in relation to the issue of entitlement to service connection for hearing loss or tinnitus constitutes harmless error. 

II. The Merits of the Claim

To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  

A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Difficulty hearing is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

A.  Claim for service connection for hearing loss

The appellant contends that he currently suffers from bilateral hearing loss due to in-service noise exposure while performing his duties as a combat engineer, including in Vietnam.  The appellant provided similar testimony at his April 2017 Travel Board hearing.

The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The United States Court of Appeals for Veterans Claims (Court) held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Id. at 157.  The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected.  Id. at 159.  It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.

The appellant was afforded a VA audiometric examination in August 2014; the examiner reviewed the appellant's claims file and medical records.  The examiner noted that the appellant demonstrated normal hearing at his July 1965 entrance examination and that no audiometry was performed at the time of the September 1967 service separation examination.  The appellant reported that he had first noticed his hearing loss approximately 35 years before.  He also reported that he had experienced occupational noise exposure post service when working in a factory and as an ironworker.  The puretone threshold results from the August 2014 VA audiometric testing, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
25
45
0
LEFT
15
20
25
45
45

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 94 percent in the left ear.  The Board notes that the '0' listed at 4000 Hertz appears to be a typographic error.  Nevertheless, each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.

The examiner opined that it was not likely that the appellant's currently demonstrated bilateral hearing loss was related to his military service.  The examiner stated that with a report of onset 35 years before, the appellant's hearing loss would have started in the mid-1980s, some 15 years after service separation.  The examiner also stated that the appellant had post military noise exposure to account for the current hearing loss.  

However, 2014 minus 35 is 1979 and therefore there is doubt about the examiner's reasoning.  In addition, the appellant testified during his April 2017 Travel Board hearing that he did the math wrong in his head and meant to say 45 years - not 35 years.  He further testified that he had noticed he had some hearing loss within one year of his service separation in 1967.  2014 minus 45 is 1969 which is more consistent with the appellant's report of hearing loss within one year of his service separation.

Viewing the evidence in the light most favorable to the appellant, the positive evidence of record consists of the fact that he currently suffers from bilateral sensorineural hearing loss (SNHL), that there is clinical evidence to the effect that exposure to acoustic trauma does cause SNHL and that there is objective evidence to support the appellant's reports of his exposure to acoustic trauma in service.  The appellant's Army service records indicate that he was a combat engineer.  See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event; for example, combat engineer is listed as an Army MOS that is "highly probable" for exposure to hazardous noise.)  Therefore, the Board accepts the appellant's assertions of in-service noise exposure as credible.  Furthermore, the appellant testified that he noticed hearing loss within one year of his separation from service.

Since no other explanation other than acoustic trauma has been specifically advanced to account for the appellant's current hearing deficits, these facts and the doctrine of reasonable doubt provide a proper basis for granting service connection for bilateral hearing loss.  For these reasons, the Board finds that evidence for and against the appellant's claim is at least in relative equipoise on the question of whether the currently diagnosed bilateral hearing loss is related to acoustic trauma in service or after service.  The Board will resolve any doubt in the claimant's favor and finds that the appellant's bilateral hearing loss is as likely the result of his noise exposure in service as it is the result of some other factor or factors.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

B.  Claim for service connection for tinnitus

The appellant has herein been granted service connected for his bilateral hearing loss based on acoustic trauma in service and the Board notes that "an associated hearing loss is usually present" with tinnitus.  THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id.  "High frequency tinnitus usually accompanies [noise-induced] hearing loss."  THE MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear.  In addition, the report of the August 2014 VA audiology examination contains the statement that the appellant had post military noise exposure to account for his onset of tinnitus.

The evidence unfavorable to the claim consists of the service medical records which contain no mention of tinnitus and the many years between service and clinical documentation of tinnitus.  Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently has service-connected bilateral SNHL as well as tinnitus, and that, based on his MOS, he was exposed to acoustic trauma while he was on active duty.  Also, the appellant is competent to assert occurrence of an in-service injury.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In addition, the August 2014 VA examiner concluded that the appellant's tinnitus was etiologically associated with noise exposure.

The evidence for and against the claim for service connection for tinnitus is at least in approximate balance.  The Board finds that the appellant's tinnitus is as likely the result of his noise exposure in service or it is as likely a symptom of his service-connected noise-induced hearing loss as it is the result of some other factor or factors.  Accordingly, service connection is warranted for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


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ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.






____________________________________________
DEBORAH SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs