Citation Nr: 1803317 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-17 013 ) 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 disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and T.M. ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1966 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs, Regional Office located in Denver, Colorado (RO), which in pertinent part, denied the benefits sought. In June 2017, the Veteran and his wife provided testimony before the undersigned during a Board hearing held via videoconference capabilities. A copy of the hearing transcript has been associated with the claims folder. At the time of the hearing, the Veteran submitted additional evidence with a waiver of initial consideration. FINDINGS OF FACT 1. The competent and credible evidence of record demonstrates that the Veteran's bilateral hearing loss cannot be satisfactorily disassociated from his period of active service. 2. The competent and credible evidence of record demonstrates that the Veteran's tinnitus cannot be satisfactorily disassociated from his period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Here, in view of the Board's favorable decisions to grant service connection, any further discussion as to any shortcomings in duties to assist and notify, or regarding whether the Veteran was prejudiced by any such lapses, would serve no useful purpose. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that 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 which was incurred in or aggravated by service. Id. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, including organic diseases of the central nervous system, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the rules regarding service connection in general, there are additional considerations for addressing claims of entitlement to service connection for hearing loss. Under the laws administered by VA, a certain threshold level of hearing impairment must be shown in order for hearing loss to be considered a disability. Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater; or when speech recognitions scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. He contends that he has current hearing loss and tinnitus as result of exposure to hazardous loud noises during his period of service. He reports that he served as a truck driver and machine operator in the United States Army and his duties required him to be around loud equipment noises. In addition, the Veteran reports that he was exposed to noise of gunfire and other combat noises while he was stationed in the Republic of Vietnam. The Veteran testified that he first notice symptoms of tinnitus during service after training sessions on the firing range and his wife testified that she observed a decrease in his hearing acuity both during and after his separation from service. The Veteran stated that he did not report any problems at the time of his separation, because he did not want to delay his discharge from service. See June 2017 Board hearing transcript. A review of the claims folder demonstrates that the Veteran has current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 and he has a current diagnosis of tinnitus. See the report of a June 2013 VA examination report as well as April 2014 private audiology examination report. Element (1), current disability, has been shown for each claimed disorder. In addition, the Board concedes that the Veteran was likely exposed to extreme noises during his period of service when he worked as truck driver and machine operator. See VBA Fast Letter 10-35 (September 2, 2010) (VA will concede exposure to hazardous noise where a veteran's duty position is shown to have a "Highly Probable" or "Moderate" probability of such exposure). Here, the Veteran's DD 214 from his service in the United States Army shows that his military occupational specialty (MOS) was as a construction machine operator and his service personnel records show that he was attached to an infantry unit in the Republic of Vietnam. Based on the Veteran's service records, his exposure to extreme noise in service is highly probable. In addition, the Veteran testified during the June 2017 Board hearings that he was exposed to loud noises from heavy machine equipment, gunfire, and other combat noises. Given the Veteran's MOS, and his credible statements about his duties while in service, the Board finds that the Veteran was likely exposed to extreme noise in service. Element (2), in-service injury, has been met. With regard to element (3), a medical nexus, the record contains an April 2014 private medical opinion from K.J.T, Au.D., in which she states that the Veteran's bilateral hearing loss and tinnitus are more likely than like to acoustic trauma that he suffer during his period of service. This private medical opinion appears to be based solely on the Veteran's reported history of acoustic trauma and complaints of hearing loss and tinnitus during service and since then. In contrast, the June 2013 VA examiner opined that the Veteran's bilateral hearing loss was not caused by noise exposure in service, reasoning that there was no evidence of hearing loss document in his service treatment records and no evidence of hearing damage when comparing his separation examination results to his enlistment examination. The VA examiner opined that the Veteran's tinnitus was associated with his bilateral hearing loss. Although the VA examiner's opinion is a medical conclusion that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner's opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Rather, the Board's duty is to assess the probative value of the medical evidence. Id. Here, the 2013 VA examiner's medical opinion is based on a review of the Veteran's claims folder, and Dr. T.'s private medical opinion is based solely on the Veteran's reported history. The Board notes that the review of the claims folder does provide probative value to the medical opinion rendered based on that review, and the Veteran did deny any hearing loss or ear problems on his 1969 report of medical history prior to separation. However, he testified that he did not report any problems because he did not want to delay his discharge from service. In addition, the Veteran's wife has provided testimony regarding her observations of the Veteran's decreased hearing acuity after his separation from service when compared to his entrance into service. The Veteran's wife testified that she has known the Veteran prior to, during, and after his service. They have been married for over fifty years. See June 2017 Board hearing transcript, page 7. Given the Veteran's and his wife's lay testimony, the Board has no reason to doubt the veracity of the Veteran's current lay statements regarding his exposure to loud noises and his reported history of decreased hearing acuity and ringing in ears upon which the private medical opinion is based. The Board finds that the probative value of the conflicting medical opinions are at least in equipoise where one of the opinions is not more probative than the other. The Board concludes that the medical nexus evidence of record addressing the etiology of the Veteran's bilateral hearing loss is in relative equipoise. There is no contrary medical opinion to private opinion linking the Veteran's tinnitus to his period of service. Furthermore, the 2013 VA examiner opined that the Veteran's tinnitus is a result of his hearing loss, and also supports an award on a secondary basis for tinnitus. See 38 C.F.R. § 3.310; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Any reasonable doubt is resolved in his favor, and service connection is warranted for both of these claims. See Shedden, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs