Citation Nr: 1805357 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 15-15 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1955 to June 1957, with subsequent Reserve service in the U.S. Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2017, the Board remanded the Veteran's case to the RO for provision of a Board hearing. The Veteran was therefore afforded the opportunity for a hearing, and such was held before the undersigned Veterans Law Judge (VLJ) in December 2017 via video-conference with the RO, and a transcript of the hearing has been 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. The Veteran's bilateral hearing loss disability is related to service. 2. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Resolving all doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The appeal of service connection for bilateral hearing loss and tinnitus has been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, i.e., a grant of service connection for bilateral hearing loss and tinnitus, no conceivable prejudice to the Veteran could result from this decision as it pertains to that claim, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Pertinent Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) the existence of a 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Bilateral Hearing Loss 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 United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The results of the Veteran's January 2012 private audiological examination reflect right and left ear puretone thresholds of 30 decibels or greater at 2000, 3000, and 4000 hertz. The results of the Veteran's March 2012 VA audiological examination reflect right ear puretone thresholds of 30 decibels or greater at 2000, 3000, and 4000 hertz, and left ear puretone threshold of 55 decibels at 4000 hertz. See also January 2012 audiological record from Kaiser Permanente. Accordingly, the Board finds that the Veteran has a current bilateral hearing disability for VA purposes. The dispositive issue is whether the Veteran's current hearing loss is related to his military service. He contends that exposure to noise during service caused his current bilateral hearing loss. The Veteran's DD Form 214 reflects that he served in the United States Army, with a military occupational specialty (MOS) of Field Artillery Operations and Intelligence Specialist. In a February 2014 Statement in Support of Claim, the Veteran asserts that this bilateral hearing loss was caused by exposure to artillery fire and small arms fire during military training, during which he "fired 100 to 200 rounds daily for several months in practice and matches" and he was frequently exposed to artillery fire when "near the artillery batteries in the field," which included "105 mm, 175 mm, and 8-inch Howitzers," and at "no time" during service was he provided with "any ear protection." During the December 2017 Board hearing, the Veteran testified that he "was in fire Direction Control for the Battalion, and basically was involved with a lot of firing on the firing range and so on." Hearing Transcript dated December 8, 2017 at pg. 3. Considering the nature of the Veteran's military service and his MOS that included Field Artillery Operations, the Veteran's accounts of his duties in service and exposure to acoustic trauma are consistent with the circumstances, conditions, and hardships of his service and are, therefore, competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during military service. The National Personnel Records Center (NPRC) reports that the Veteran's service treatment records were lost in a 1973 fire at its facility in St. Louis, Missouri. The earliest medical evidence that references the Veteran's hearing is dated after his separation from active service. In this regard, an October 1962 service medical examination reflects that the Veteran's ears were normal. The report includes puretone thresholds of 30 decibels for the right ear and 55 decibels for the left ear at 6000 Hertz. There are no notations for puretone threshholds at 3000 Hertz. The record also contains 2012 audiologic records from Kaiser Permanente. The Veteran was provided a March 2012 VA audiology examination for VA compensation purposes. The examiner, an audiologist, acknowledged the Veteran's exposure to acoustic trauma during service, including artillery fire, small arms fire, periodic explosions, and jet noise. The VA examiner discussed the various sources of in-service acoustic trauma reported by the Veteran as well as the October 1962 audiometric data, concluding that the Veteran's pure tone averages from 500 to 4000 Hertz were within normal limits at that time. Noting the absence of evidence of hearing loss in 1962, the VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to service. The Board however finds this opinion inadequate in that the only basis for providing the negative opinion was the absence of hearing loss five years after service without explanation as to its significance. Moreover, although the examiner acknowledged the Veteran's in-service acoustic trauma, she did not explain why the Veteran's current hearing loss is not related to such trauma. Not only is the opinion inadequate, it is of little probative value on the question of etiology of the Veteran's hearing loss. In support of the claim, the Veteran submitted an April 2013 medical opinion authored by his treating physician, Dr. C., a board-certified physician specializing in otolaryngology. Dr. C. recognized that the Veteran was exposed to "significant artillery fire" and gunfire while "on a rifle team" without having been issued hearing protection while in service, and opined that, given his long noise exposure history in the military and accumulative effects, it was "probable that the noise exposure [due] to artillery fire, rifle fire, small arms fire, and loud communication equipment has in large part significantly contributed to his current cumulative sensorineural hearing loss." The physician considered the circumstances and conditions of the Veteran's military service and the exposure to military acoustic trauma, as well as the 1962 audiometric data, and provided insight into why the Veteran's disability is likely related to noise exposure in service. The Board finds the April 2013 opinion to be highly probative. Although the physician only described the relationship between the Veteran's hearing loss and acoustic trauma as "probable," he also stated in the same sentence that that the acoustic trauma has in large part significantly contributed to the Veteran's current hearing loss. Thus, when read as a whole, and with resolution of any reasonable doubt in his favor, the Board finds that this probative opinion supports a finding that the Veteran's hearing loss is at least as likely as not related to his service. Indeed, Dr. C. has specialized training in ear disabilities as an otolaryngologist. Given the Veteran's medical evidence of a current hearing loss disability, evidence of in-service acoustic trauma, and a probative etiology opinion, service connection is warranted for bilateral hearing loss. Tinnitus The Veteran also contends that he has tinnitus related to his acoustic trauma during active service. A veteran is competent to report matters within his or her own personal knowledge such as experiencing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to ringing in the ears which is capable of lay observation); See Barr, 21 Vet. App. at 308-09. As discussed above, lay evidence may establish a diagnosis of a simple medical condition. Jandreau, 492 F.3d at 1377. The Veteran's January 2012 private and March 2012 VA audiological examinations each reflect a diagnosis of tinnitus. Considering that the Veteran is competent to report that he currently has tinnitus, and that there is competent medical evidence of such diagnosis, the Board finds that the Veteran has a current disability of recurrent tinnitus. Again, in-service acoustic trauma has been conceded in this case. The record reflects that the Veteran's MOS included Field Artillery Operations and his reported noise exposure is consistent with the circumstances, conditions, and hardships of his service. The Veteran has further stated that he started hearing ringing in his ears while he was at Fort Benning during his active duty service, that he has heard the ringing ever since, and that he has worn hearing protection in loud noise environments since the late 1960s. Statement in Support of Claim dated February 14, 2012; Hearing Transcript dated December 8, 2017 at pg. 6. On the question of etiology, the record contains an unfavorable opinion provided by the March 2012 VA examiner. In finding that the Veteran's tinnitus is less likely as not related to service, the examiner's reasoning was that the Veteran's hearing was normal after service in 1962. This rationale is inadequate as the examiner does not connect the dots by explaining why the lack of hearing loss in 1962 means that the Veteran's tinnitus is not related to service. Also of note is that the examiner did not discuss the impact, if any, that the in-service acoustic trauma has on his current tinnitus. For these reasons, not only is the March 2012 opinion inadequate, it is of no probative value. Nevertheless, based on the same rationale as provided with regard to the veteran's hearing loss, Dr. C., in his April 2013 opinion, also attributes the Veteran's tinnitus to in-service acoustic trauma. For the same reasons as expressed above, the Board resolves any doubt in the Veteran's favor in finding that Dr. C.'s opinion as a whole suggests that the Veteran's tinnitus is at least as likely as not related to in-service acoustic trauma. Given the Veteran's medical evidence of a current diagnosis of tinnitus, evidence of in-service acoustic trauma, and a probative etiology opinion, service connection is warranted for tinnitus. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for recurrent tinnitus is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs