Citation Nr: 1801146 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-12 710 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Gannon, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1974 through August 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 rating decision in which the regional office (RO) denied service connection for tinnitus and bilateral hearing loss. In November 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2014, and the Veteran subsequently filed a substantive appeal (VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2014. In December 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. . FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and there is competent, credible, and probative lay and medical evidence tending to establish a link between the Veteran's service, to include noise exposure therein, and his current hearing loss. 4. The Veteran currently has tinnitus, and there are competent, credible and probative lay assertions that the Veteran began to experience symptoms of tinnitus in service that have recurred to the present, and medical opinion evidence indicating that tinnitus is either related to in-service noise exposure, or is secondary to hearing loss.. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. § 3.102, 3.156(a), 3.159, and 3.326(a). Given the fully favorable decision on the Veteran's claim for service connection for bilateral hearing loss and for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus due to the acoustic trauma he experienced during his Air Force service. Specifically, he contends that he was exposed to such noise during various training exercises, weapons qualifications, and during his participation in a competitive pistol and rifle team. He further contends that he was required by virtue of his military occupational specialty, Security Forces specialist, to regularly handle firearms as part of his duties, and that he was either provided with ineffective hearing protection or hearing protection was unavailable. This regular exposure to loud noise without adequate hearing protection, he argues, is the source of the conditions for which service connection is sought. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss (38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, when testing results at the time of separation from service do not meet the requirements for establishing hearing loss under 38 C.F.R. § 3385, service connection may still be established "by submitting evidence that the current disability is causally related to service." Id. If a chronic disease, such as an organic disease of the nervous system (interpreted to include hearing loss), becomes manifested to a degree of ten percent within one year of separation from active service, then it is presumed to have been incurred during active service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1101, 1111, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. With a chronic disease shown as such in service (or within the presumptive period after service under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995.. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of each claim, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. As for the in-service injury or disease requirement for both claims, although there is no documented evidence of any one specific incident of acoustic trauma (or treatment thereof), there is no serious dispute that the Veteran had some in-service noise exposure. In his August 2012 VA examination, the examiner noted that the Veteran reported, "M-16, practice grenades, pistol and rifle fire; hearing protection was reportedly worn at times." In the Veteran's April 2014 substantive appeal, The Veteran stated that as part of a competition rifle and pistol team, he fired weapons "more than our counterparts did in combat in Vietnam." In support of this contention, the Veteran has submitted two Air Force training certificates from March 1975 showing that he completed 150 hours of security specialist training and 212 hours of airbase defense training at Lackland Air Force Base in Texas. The Veteran's military personnel record shows that he was designated an outstanding marksman at the Security Specialist Course in March 1975 at Lackland Air Force Base. This March 1975 award letter notes that Air Force Security Specialists are "one of the few in the United States Air Force in which firearms are handled as a matter of routine." The Board finds the Veteran is competent to assert the occurrence of an in-service injury, to include in-service noise exposure. See Grottveit v. Brown, 5 Vet. App. 91 (1991). The Board further finds that, in this case, there is no reason to question the veracity of the Veteran's assertions in this regard. Thus, although there is no objective evidence to document a specific incident of acoustic trauma in service, the Board accepts the Veteran's assertions of in-service noise exposure, as described, to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154. The evidence must also establish current disability. With respect to the hearing loss claim, to have a ratable hearing loss disability for VA compensation purposes, the Veteran must have had since the filing of his claim sufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. According to this regulation, impaired hearing will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores under the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the audiograms of record, including the August 2012 VA audiogram, reflect that the Veteran has bilateral hearing loss to an extent recognized as a disability for VA purposes. Therefore, a current disability has been established. The remaining question is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that, collectively, lay and medical evidence of record reasonably supports a finding of a medical nexus between current hearing loss and service. In support of his claim for service connection, the Veteran has reported onset of symptoms of diminished hearing while still in service, continuing through to the present day. Specifically, he reported in his December 2016 Board hearing that he experienced ringing in his ears and temporary hearing loss after firing weapons in service. The Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge, to include the occurrence of injury or symptoms experienced or observed. See 38 C.F.R. § 3.159(a)(2) (2014). See also Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's wife also submitted a lay statement in December 2016 detailing her observations of her husband's hearing issues. She noticed the Veteran had a difficult time hearing, and that he complained about ringing and clicking in his ears. She said the Veteran asks her to repeat herself even if there is limited background noise. She wrote that the Veteran had difficulty in louder environments, such as when they are in the car or at family gatherings. The Veteran's reports that he began noticing hearing loss symptoms during or shortly after service, and that he has continued to experience diminished hearing from service to the present, as supported by his wife's lay statements, are accepted as credible. See 38 U.S.C. § 1154(b). As for the medical opinion evidence of record, the Board notes that in August 2012, a VA audiologist stated that "there is no scientific evidence to support a nexus between this current hearing loss and events during service," since the Veteran's entrance and exit examinations showed normal hearing with no significant threshold shifts. Notably, the audiologist did not definitively rule out a relationship between the Veteran's current hearing loss and service ; rather, the examiner merely stated on that none of the evidence available at the time weighed in favor of finding a positive nexus. Thereafter, in March 2012 , the Veteran was examined by a private audiologist who provided the following opinion in a November 2016 letter after reviewing his medical records and military personnel records: "It is my opinion that [the Veteran's] hearing loss and tinnitus are directly related to excess noise exposures beginning with his military service." Her stated rationale was that the Veteran displays a pattern of hearing loss often associated with excessive noise exposure, and that he likely was exposed as a result of his time around firearms in service without hearing protection. Specifically, she pointed to an audiogram showing "slightly weaker thresholds in the high frequency range (4KHz, 6KHz)" and the Veteran's reports of temporary hearing loss as evidence of a relationship between the in-service injury and the current disability. The examiner cited recent research in the field to support her rationale. In sum, the Veteran has provided competent and credible evidence that he experienced an in-service injury in the form of noise exposure and that he currently has bilateral hearing loss. Furthermore, the Veteran's credible lay statements concerning in-service noise exposure are supported by his military personnel records which indicate that his military occupational specialty involved frequent use of firearms. Lastly, the November 2016 private opinion by a competent professional is consistent with the Veteran's statements concerning continuity of symptomatology. While the Board has considered the August 2012 VA examiner's opinion, given the Veteran's competent, credible-and hence, probative-assertions as to onset and continuity of symptomatology, when taken in conjunction with the positive nexus opinion from the private examiner, the Board finds that the evidence of record is, at least, relatively evenly balanced on the medical nexus question. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the evidence discussed above, and resolving all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss are met. With regard to claimed tinnitus, the Board notes that the Veteran has a current diagnosis of tinnitus and that he is now service connected for bilateral hearing loss; therefore, the first and second elements of service connection, on a secondary basis, have been met. Notably, on August 2012 VA examination, the VA audiologist opined that it was at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tinnitus was a symptom associated with his hearing loss, since tinnitus is known to be such an associated symptom. However, on the question of the relationship, if any, between current tinnitus and service, the August 2012 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. As a rationale, the VA examiner cited the lack of evidence of acoustic trauma or complaints of tinnitus documented in the Veteran's service treatment records. In support of his claim for service connection for tinnitus, during the December 2016 Board hearing, the Veteran testified that he first experienced ringing in the ears during service, and that he has experienced recurrent ringing or clicking in the ears since service. The Veteran's wife's lay statement supports this contention in that she stated in a letter that he frequently reported ringing in her presence. Additionally, as noted above, the Veteran was examined by a private audiologist in March 2012, who provided a positive nexus opinion as to the relationship between the Veteran's military service and his current tinnitus, specifically linking it with military noise exposure experienced in-service. The Board further notes that lay evidence may serve as a basis to establish the claim. See Charles, supra; Savage v. Grober, 10 Vet. App. 488, 495-97 (1997). As indicated, tinnitus is among the chronic diseases listed at 38 C.F.R. § 3.309(a) that may be service connected based on continuity of symptomatology, which the Veteran asserts. Additionally, tinnitus is a rare type of disability for which, in the vast majority of cases, service connection may be established when there is credible lay evidence of continuity of symptomatology since service. See Charles, supra. Given the nature of the disability, as explained above, the Board finds that the Veteran has provided competent and credible, and hence, probative evidence that he has had continuous symptoms of tinnitus since his discharge from active duty service, and the Board finds no reason to question the veracity of such statements. See Charles, 16 Vet. App. 370; Hayes, 5 Vet. App. at 69-70. Thus, with respect to the tinnitus claim, the record reflects that the Veteran currently has tinnitus, and there are competent, credible-and hence, probative-lay assertions that he began to experience symptoms of tinnitus in service that have recurred to the present. Also, although, as indicated above, given the nature tinnitus, a medical opinion is not necessarily needed to establish a nexus to service, here, the collective medical opinion evidence of record indicates that tinnitus is either directly related to in-service noise exposure (as opined by the private examiner), or is secondary to now service-connected hearing loss (as suggested in the comments of the March 2012 VA examiner)-either of which is supportive of an award of service connection. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus also are met. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs