Citation Nr: 1757060 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 17-19 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for a cognitive/comprehension disorder (claimed as hearing loss), to include as due exposure to jet fuel. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from January 1965 to March 1969. His service included service in the Republic of Vietnam. For his service, the Veteran has been awarded the combat aircrew insignia, and the Air Medal, with a Gold Star awarded in lieu of a second Air Medal, for meritorious service while performing combat support missions. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2017 Board hearing. A transcript of the hearing is contained in the virtual record. During the May 2017 hearing, the Veteran expressed that when he sought service connection for bilateral hearing loss, he was seeking compensation benefits for "processing issues" associated with his exposure to jet fuel. He was unsure if he actually had hearing loss, but believed that he was struggling to comprehend words. As he indicated that this is what he was seeking by way of a "hearing loss" claim, the Board has added the additional claim of entitlement to service connection for a cognitive/comprehension disorder related to his exposure to jet fuel. The issues of entitlement to service connection for bilateral hearing loss and cognitive/comprehension disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran was exposed to hazardous noise in service and credibly reported that his tinnitus began in service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Given the Board's favorable disposition of the claim of entitlement to service connection for tinnitus, the Board finds that failure to discuss VA's compliance with its duties to notify and assist will result in harmless error to the Veteran. Service connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Determinations regarding service connection are based on a review of all of the evidence of record, including pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) ("A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' to prevail."). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.§ 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.§ 1154 (b); 38 C.F.R. § 3.304 (d). The Veteran contends that he warrants service connection for tinnitus as a result of his military service. In May 2017, the Veteran testified before the Board regarding his military service and the onset of his tinnitus. He testified that in March 1965 he went to boot camp infantry training, then Naval Aviation training where he trained as an aviation structural mechanic and was assigned to a helicopter squadron preparing to depart for Vietnam in December 1966. That training included the firing of five inch guns. He deployed in December 1966, and trained as an aviation gunner initially, with an M-60 machine gun, and later the Browning M-2 machine gun. He flew as a crew member on a CH-46 aircraft until July 1976. He stated a lot of the flying he did was undocumented and was credited to another guy in his squadron who had his same (and common) name. He was awarded two air medals. He reported he flew with a "crash helmet" that was not a "sound suppressant helmet." It had a Styrofoam lining and an intercom connection. The Veteran stated he did engage in combat with the enemy during this service. The Veteran testified his tinnitus began in late 1967 or early 1968, and had progressively worsened. He stated that his most recent hearing examination was in 2013. He noticed his tinnitus when he returned to California in 1968 and was "performing training on the flight line with auxiliary power units running and the aircraft turned up with no hearing protection whatsoever." He stated that he also generally had no hearing protection on in Vietnam. The Veteran stated that an auxiliary power unit is a "small jet engine that develops about one hundred horsepower, provides hydraulic pressure, and electrical power for the aircraft." He stated that "noise was a factor one hundred percent of the time you were working." He also did not have hearing protection when he was providing maintenance activities on aircraft. Obviously, given the Veteran's description of his service, the VLJ conceded that he was exposed to hazardous noise in service. The Veteran was afforded a VA examination in December 2012. The examination report includes audiometric testing and word recognition scores. Based on those, the Veteran's left ear met VA's standard for a hearing loss disability based on his 92 percent Maryland CNC word recognition score. His right ear did not meet VA's standard for a hearing loss disability. The examination report did not include a statement regarding the Veteran's report of tinnitus onset of symptoms. The examiner noted that the Veteran was exposed to hazardous noise levels in service. His service treatment records showed that he did not have hearing loss while in service. Based on his lack of hearing loss at discharge from service the examiner provided a negative medical opinion regarding the Veteran's left ear hearing loss and tinnitus. The Board finds the examiner's opinion regarding the onset of the Veteran's tinnitus to be inadequate. The examination failed to include a statement from the Veteran regarding the onset of his tinnitus, which is a wholly subjective medical condition. Given that the Veteran was exposed to hazardous noise in service, and his credible accounting of the onset of tinnitus during service, and during exposure to excessive noise, the Board finds that entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for bilateral tinnitus is granted. REMAND During his May 2017 Board hearing, the Veteran testified that when he sought service connection for "hearing loss" that he was seeking compensation benefits as they related to his inability to understand or comprehend or (possibly) hear words. He did not know if he had any actual hearing loss or if he had a cognitive/comprehension problem regarding understanding speech. The Veteran reported that he had come across a study that indicated that his in-service (in combat) exposure to jet fuel may have resulted in neurological problems preventing him from understanding speech. The Veteran submitted internet treatises to support his claim that his exposure to jet fuel may be the cause of his "hearing" or comprehension difficulties. The articles indicated that jet fuel injured the brain such that there was a "disconnect between what the ears hear and the deciphering into understandable language." One article listed that "the VA study showed definitive links to auditory processing dysfunctions among those who had exposure to the fuel." In reviewing his 2012 VA examination, the Veteran's puretone testing results did not, in and of itself, indicate he had a hearing deficit by VA's disability standards. Indeed, his right ear testing results did not meet the criteria for finding a hearing loss disability for VA purposes. His left ear only met VA's standards based on word recognition, which may be associated with the Veteran's claim of an "auditory processing dysfunction" as a result of exposure to jet fuel. Given the above, instead of granting the Veteran's left ear hearing loss based on his exposure to hazardous noise, the Board is remanding the hearing loss and cognitive/comprehension claims for a VA examination to determine if he had an auditory processing dysfunction or if hearing loss alone is the cause of his word recognition score. On remand, provide the Veteran with the necessary VA examinations to determine if he has a cognitive/comprehension/processing disorder or a hearing loss disorder, or both. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an additional VA hearing loss examination. Following testing and interview of the Veteran, the examiner should provide the following opinions: Is it at least as likely as not (50/50 probability or greater) that the Veteran has hearing loss as a result of his exposure to hazardous noise in service? Are the Veteran's word recognitions scores compatible with his puretone testing results? (Note that the Veteran has put forth a claim that his exposure to jet fuel may be causing an auditory processing dysfunction.) A rationale must be provided for each opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner must so state and then indicate why such an opinion cannot be provided without resort to speculation. 2. Schedule the Veteran for a VA cognitive or other applicable VA examination. Following testing and interview of the Veteran, the examiner should provide the following: Does the Veteran have a cognitive or comprehension disorder, to include an auditory processing dysfunction? If the Veteran has a cognitive/comprehension/auditory processing dysfunction, then is it at least as likely as not (50/50 probability or greater) that it is the result of exposure to jet fuel in service? In providing this opinion, please review the Agency for Toxic Substances & Disease Registry's Public Health Statement related to jet fuels (See 5/26/2017 Web/HTML Documents). A rationale must be provided for each opinion expressed. If any opinion cannot be provided without resort to speculation, the examiner must so state and then indicate why such an opinion cannot be provided without resort to speculation. 3. After the above is complete, readjudicate the Veteran's claims. If the claims remain denied, the RO must issue a supplemental statement of the case (SSOC). The Veteran and his representative should be given an opportunity to respond before the case is returned to the Board The Veteran and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs