Citation Nr: 1800863 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-27 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Medina, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to July 1980, with additional reserve service. This matter comes before the Board of Veterans' Appeals on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. A bilateral hearing loss disability was not shown during service or within one year following discharge from active duty service, and the most probative evidence indicates the current bilateral hearing loss disability is not related to service. 2. Resolving all doubt in the Veteran's favor, tinnitus as likely as not arose during his period of active duty service and has continued since. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training (INACDUTRA) during which the person was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24) (West 2012); 38 C.F.R. § 3.6(a). In other words, with respect to Reserve service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing inactive duty training. Service connection is generally not legally merited when a disability on inactive duty training results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss or tinnitus become manifest to a degree of 10 percent within one year from date of termination of such service, such diseases shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2012); 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or by an injury incurred or aggravated in the line of duty during INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). For the purposes of applying the law 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 (specified frequencies) 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. "[W]hen 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he was exposed to hazardous noise as a result of his active duty service when he encountered acoustic shock due to grenade and weapons firing without the use of hearing protection, resulting in his current hearing loss and tinnitus. Alternatively, the Veteran contends that his hearing loss and tinnitus were aggravated by his periods of ACDUTRA and INACDUTRA. As an initial matter, the Board notes the record reflects the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and tinnitus. Accordingly, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether the disabilities are related to service. Upon review of the record, however, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, but in favor of the claim for tinnitus. The Board notes that the Veteran's service treatment records (STRs) from his active duty service are not available and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. In this case, the RO attempted to obtain additional records by alternative means. In October 2011, the RO advised the Veteran that his STRs were destroyed in a fire and requested that he submit any relevant documents in his possession. A formal finding of unavailability was made in November 2011. The Board acknowledges its heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when serviced records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). A. Hearing Loss The Veteran's available service treatment records contain a January 1980 reserve enlistment examination at which time audiology testing revealed normal hearing. The Veteran first underwent VA examination in December 2011. However, the examiner did not provide an etiology opinion for hearing loss or tinnitus as the Veteran's hearing loss could not be tested. The Veteran submitted a private audiogram dated March 2012, at which time testing revealed pure tone thresholds of 105, 85, 110, 110, and 110 decibels in the left ear and 85, 80, 90, 95, and 100 decibels in the right ear at the specified frequencies. Speech recognition scores were not recorded. In sum, there is no competent evidence establishing a hearing loss disability pursuant to 38 C.F.R. § 3.385 during service. In fact, the first evidence of a hearing loss disability pursuant to 38 C.F.R. § 3.385 was not shown until March 2012, almost 32 years after separation from his active duty service. As there is no competent evidence of a hearing loss disability during or within one year following discharge from active duty service, competent evidence linking the current hearing loss with service is required to establish service connection. On this question there are medical opinions both in favor of and against the Veteran's claim for service connection. In September 2013, the Veteran underwent VA audiological examination. Audiological testing revealed pure tone thresholds of 30, 30, 30, 30, and 35 decibels in the left ear and 35, 30, 30, 35, and 35 decibels in the right ear at the specified frequencies. Speech recognition scores were 94 percent bilaterally. The examiner diagnosed bilateral sensorineural hearing loss. The examiner opined that the Veteran's current bilateral hearing loss was less likely than not related to service. The examiner noted the private March 2012 audiogram and that the Veteran's DD Form 214 shows that the Veteran was exposed to rifles and grenades. The examiner explained however, that the 2013 hearing results show a mild flat hearing loss, but that this pattern was not consistent with noise exposure. This finding is critical, in that it indicates the Veteran has hearing loss, but the type of hearing loss is not consistent with noise exposure. The Veteran submitted private treatment records dated August 2015. At that time, audiology testing revealed pure tone thresholds of 90, 85, 85, and 90 decibels in the left ear and 90, 95, 100, and 105 decibels in the right ear at 500, 1000, 2000, and 4000 Hertz. Speech recognition scores were 80 percent in the left ear and 76 percent in the right; although, it was not clear whether the Maryland CNC test was used. The physician also noted tinnitus. The physician commented that the audiogram shows moderately severe sensorineural hearing loss with history of prolonged noise exposure in the military. The Veteran also submitted a private audiogram dated December 2015. At that time, audiology testing revealed pure tone thresholds of 20, 20, 25, 35, and 30 decibels in the left ear and 20, 20, 30, 25, and 30 decibels in the right ear at the specified frequencies. Speech recognition scores were 90 percent in the left ear and 92 percent in the right; although, it was not clear whether the Maryland CNC test was used. The physician commented that the Veteran has hearing loss, left greater than right, and constant tinnitus. Regarding bilateral hearing loss, in weighing the opinions of record, great weight is given to the opinion of the September 2013 examiner. The VA examiner's opinion was based upon examination of the Veteran, review of the medical records, and supported by detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Conversely, the opinion from the August 2015 private physician provided no rationale for the conclusion reached nor did the opinion take into account the medical evidence of record. Thus, the Board finds the opinion is entitled to little, if any probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board acknowledges the Veteran's contention that his bilateral hearing loss was aggravated/initiated during the course of his post 1980 service time. However, as noted above, the evidence must show hearing loss that is related to a period of ACDUTRA, not merely arising while the Veteran is a member of the reserves. Moreover, the Board notes that the evidence does not suggest that he suffered a specific injury to his ears during a period of INACDUTRA such that service connection for hearing loss can be considered on that basis or that the condition is related to or arose during a particular period of ACDUTRA. Moreover, while the Veteran believes that his hearing loss is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are not matters capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis and etiology of his hearing loss is not competent medical evidence. In sum, the preponderance of the probative evidence is against a finding that the Veteran's current hearing loss is related to his service. Accordingly, the claim for service connection for bilateral hearing loss is denied. In reaching the above conclusion as to hearing loss, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. B. Tinnitus With respect to tinnitus, the Veteran is competent to state that his tinnitus began in service, because tinnitus is a condition capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself). The 2013 examiner noted that the Veteran reported tinnitus since being on the firing range during service. The examiner opined that the Veteran's tinnitus was as likely as not a symptom associated with hearing loss as tinnitus is known to be such. However, the examiner opined that the Veteran's current tinnitus was less likely than not related to military noise exposure because tinnitus was likely related to the current loss of hearing, which was less likely than not related to military noise exposure. The 2015 private physician noted that the Veteran had no post-service occupational noise exposure. Regarding tinnitus, the physician stated that the onset of tinnitus coincides with military exposure and is evidence of early-stage cochlear damage. Here, the Board finds the Veteran's assertions that his tinnitus began during his service and has been recurrent since that time to be credible. Regarding the hearing loss issue, we have a highly probative medical opinion that the type of hearing loss the Veteran has is less likely (less than 50%) caused by the type of trauma he claims he had during service. Regarding the tinnitus issue, we do not have that clear of medical opinion dissociating the problem to service. Further, the Veteran's lay observations of this problem since service cannot be ignored. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs