Citation Nr: 1761084 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 15-18 921A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran and Veteran's Spouse ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from April 1949 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. The Veteran and his spouse testified at a Board hearing in September 2017. A copy of the hearing transcript is associated with the record. 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). FINDINGS OF FACT 1. There is at least an approximately balance of positive and negative evidence as to whether the Veteran has bilateral hearing loss disability as a result of his ACDUTRA service. 2. There is at least an approximately balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of ACDUTRA service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). 2. Resolving doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In light of the favorable decision to grant service connection for the Veteran claims below, a discussion of the VA's duties to notify and assist is not necessary. II. Service Connection Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty for training INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.304. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6 (c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6 (d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. With regard to tinnitus, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is the Veteran's contention that he suffered hearing loss and tinnitus that is attributable to significant noise exposure during service. He contends that exposure was due to weapons fire during ACDUTRA training while he served on the USS Mullany DD-528. After a particular incident with the turret team firing test rounds, the Veteran reported losing his hearing immediately for approximately one hour. 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A June 2014 VA examiner diagnosed the Veteran with bilateral hearing loss disability. During the examination, the Veteran reported that his hearing loss began approximately 15 to 20 years earlier. However, the examiner opined that the Veteran's hearing loss is not related to his service. In his rationale, the examiner explained that it was his understanding that only active military service time should be considered. A September 2002 letter from the National Personnel Records Center had indicated that the Veteran had no active military service time or less than 90 consecutive days of active duty training. The examiner also stated that while there are some medical conditions that occur delayed, hearing loss is not a condition with delayed onset. Hearing loss from hazardous noise is immediate. Because the Veteran's service treatment records were silent for any report or complaint of hearing loss, any hearing loss the Veteran may have experienced during service was only temporary in nature. Another VA examination in May 2015 confirmed hearing loss in both ears. However, that examiner did not issue an opinion regarding etiology. During the September 2017 Board hearing, the Veteran's spouse testified that the Veteran's hearing loss began approximately 40 to 45 years prior. The Veteran has submitted positive nexus opinions from his private physicians. A May 2015 letter from his private audiologist opined that while the Veteran's age is a high risk category for hearing loss, the loss is more severe than what would be expected for his age and previous occupations. He concluded that since the Veteran was exposed to high levels of noise while serving in the military, it could certainly have severely affected his hearing. A letter dated February 2017 by another private audiologist concluded that the Veteran's hearing loss is at least as likely as not caused by his military service. The physician noted the Veteran's 38 years of service in the National Guard and the Naval Reserves. As a Tank Commander and Boatswain's Mate, he was exposed to excessive noise from various artilleries over the course of military service including 45 caliber pistol, 30 caliber and 50 caliber machine guns, 75mm and 105 mm canon and 5 inch guns. The Veteran also denied a childhood history of ear disorders and a family history of hearing loss. Furthermore, the Department of Defense concedes that if sufficient evidence of an in service even could not be associated with the Veteran, the Duty MOS Noise Exposure position will be considered, if the rating for noise exposure is either "Highly Probable" or "Moderate" probability. Exposure to such noise will be conceded for the purposes of establishing in the service event. The Department of Defense's noise rating for Boatswains Mate is "Moderate." As for the Veteran's tinnitus, based on his October 2014 Notice of Disagreement, the Veteran asserted that he hears occasional ringing and static noise. During the September 2017 Board hearing, he added that his tinnitus resulted from a holdover concussion that he received during his service in the National Guard and that he has been experiencing it ever since. He also testified to being exposed to loud noises from tanks and gun fire at practice ranges during service. While the Veteran did not report recurrent tinnitus during the June 2014 VA examination, he did however, reported it in his May 2015 VA examination. There, he stated that he hears intermittent light squelch noise, similar to hissing, occurring on a daily basis. That examiner opined that the Veteran's tinnitus is less likely than not related to the Veteran's service. In his rationale, he stated that the Veteran failed to report symptoms of tinnitus during or immediately after separation, and that the Veteran reported that he felt that the onset began 7 to 8 years prior. However, the Veteran asserted that it was his belief that his exposure to noise in the National Guard and the Reserves when he was trained as a loader and gunner and his time on firing ranges have damaged his hearing. The Veteran's personnel record confirms his presence on the USS Mullany in March 1966. He has been highly praised for his duties as a Junior Officer on Deck on a destroyer, station supervisor for probe refueling on a destroyer, and his role as boat captain on boats up to 125 feet. Thus, the Board concedes to some degree of noise exposure experienced by the Veteran during his extended period of ACDUTRA. The record contains both positive and negative evidence regarding the etiology of the Veteran's current hearing loss disability and tinnitus. Service treatment records show no hearing or tinnitus related complaints or diagnosis. Although the Veteran is not competent to provide opinions regarding the etiology of his hearing loss disability or tinnitus, he provided competent lay statements describing his noise exposure and symptoms of ringing in his ears while on ACDUTRA. The Veteran's private treatment records provided positive nexus opinion while the VA examiner found otherwise. The primary reason why the VA examiner have denied a nexus relationship between the Veteran's hearing loss and military service is because the examiner found that the Veteran did not have any active duty service. Based on the aforementioned evidence, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's bilateral hearing loss and tinnitus was caused by his ACDUTRA service. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for the Veteran's bilateral hearing loss disability and tinnitus. ORDER Service connection for hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs