Citation Nr: 1800310 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-29 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to August 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for bilateral hearing loss and tinnitus. In August 2015, the Veteran filed a notice of disagreement in which he disagreed with only the denials of service connection for left ear hearing loss and tinnitus. A statement of the case was issued in June 2016 and the Veteran perfected his appeal to the Board in a June 2016 substantive appeal (VA Form 9). 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. The evidence is at least evenly balanced as to whether the Veteran's left ear hearing loss disability is related to in-service noise exposure. 2. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his current left ear hearing loss and tinnitus are the result of loud noise exposure in service where he served as a pilot trainee. He further asserts that his hearing loss and tinnitus symptoms began in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). The Veteran's DD-214 indicates that his military occupational specialty was as a pilot and he is a recipient of the Distinguished Flying Cross. This indicates that he engaged in combat. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (list of Decorations that are evidence of combat participation). The Veteran's lay statements are therefore sufficient to show acoustic trauma due to combat, and the in-service injury element of the claims for service connection for hearing loss and tinnitus has therefore been met. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Moreover, the fact that the claimed cause of the Veteran's hearing loss and tinnitus, i.e., acoustic trauma from exposure to engine noise during combat service, is therefore established by his statements, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disabilities themselves while in service. Reeves, 682 F.3d at 999. The Veteran's service treatment records are silent for any complaints or treatment for hearing loss or tinnitus, and his medical examination and history reports show normal hearing at the time of entrance into service and upon discharge. In August 2015, the Veteran was provided with a VA examination to determine the severity and etiology of his hearing loss. The Veteran reported experiencing excessive noise from aircraft and flight line duty while in the service. He reported onset of hearing loss during the mid-1960s after pilot training which is more apparent on his left side. The examiner noted the Veteran's puretone thresholds at 500,1000, 2000, 3000 and 4000 Hz were 10,10, 10 25 and 30 dB respectively for the right ear, and 10, 10, 35, 50, 50 dB respectively for the left ear. His speech discrimination score using the Maryland CNC test was 100 percent for his right ear, and 88 percent for his left ear. Regarding the Veteran's left ear, the examiner noted the Veteran's hearing was normal at entrance and upon retirement, and there were no significant threshold shifts during service. The Veteran denied having hearing loss or ear problems upon retirement, and has plausible post-military noise exposure which may account for his current hearing loss. The examiner opined that it is less likely than not that the Veteran's left ear hearing loss is due to an event during his military duty. Additionally, the examiner stated that the Veteran's tinnitus was less likely than not a symptom associated with the Veteran's hearing loss, or caused by or a result of military noise exposure. The examiner noted that while the Veteran cited onset of tinnitus during military duty, he denied ear problems upon retirement and his post service career noise exposure may account for the Veteran's tinnitus. The August 2015 examination reported sensorineural hearing loss of the left ear consistent with the audiometric requirements of 38 C.F.R. § 3.385. The Board finds that, given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran's lay testimony along with the other evidence above regarding the Veteran's duties in service provides a sufficient basis to conclude that his current left ear hearing loss disability and tinnitus are related to the acoustic trauma he suffered in service. The Board notes the August 2015 VA examiner's opinion that the Veteran's hearing loss and tinnitus are not related to service because he had normal hearing at entrance and upon separation. This opinion is flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Moreover, the examiner did not take account of the Veteran's competent and credible statements regarding onset of his tinnitus and hearing loss. The evidence is thus at least evenly balanced as to whether the Veteran's current left ear hearing loss and tinnitus are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs