Citation Nr: 18142317 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-02 477 DATE: October 15, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s bilateral hearing loss is related to his active service. 2. Resolving all reasonable doubt in his favor, the Veteran’s tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for Service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1958 to September 1960. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2016, the Veteran testified at a personal hearing before a Decision Review Officer (DRO hearing) at the Columbia, South Carolina RO. A transcript of this hearing is of record. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. 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). With respect to what constitutes as a current hearing loss disability, at some point during the pendency of the claim, the evidence must show that hearing loss was manifested by an auditory threshold of 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or auditory thresholds of 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz; or speech recognition scores using the Maryland CNC Test of less than 94 percent. See 38 C.F.R. § 3.385. Without a current diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see, too, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim). The medical evidence reflects current diagnoses of a hearing loss disability, for VA compensation purposes, and tinnitus. The question before the Board is whether the Veteran’s hearing disabilities are related to his military service. The Veteran asserts that he has lived with decreased hearing and ringing in his ear since his military service. See October 2015 Statement in Support of Claim. He also asserted that he was surrounded by jet engines during his military service. The Veteran stated that the ringing in his ear was occasional in the beginning and was just annoying, and that it worsened from the noise he experienced in the military. See January 2018 Form VA 9 Board Appeal. Specifically, the Veteran reported he was assigned to the U.S. Army Artillery Division in which that he undertook basic training at Fort Blix, and additionally, he was assigned to Fort Monroe to serve in the Air Defense Nike Missile System for the Norfolk, Virginia area. He explained that his duties included protecting Langley Air Force Base, Fort Monroe Base and the Portsmouth Naval Base from enemy attack 24/7. He further explained that they were all exposed to training and maintenance of combat readiness, which included firing weapons, and that his artillery division had heavy weapons that made a loud pitch noise when fired. He additionally explained that they did not wear hearing protection. See June 2014 Correspondence from the Veteran. At his DRO hearing, the Veteran testified that because of the requirements of annually maintaining qualifications for firing missiles, they had to go to Fort Bliss, Texas for training, where they went out on a range and fired missiles at a robotic airplane; he further testified that they had annual practice with carbines and pistols to protect the Nike site where he was located. He indicated that he did not know the exact time when he first noticed his hearing loss but that more than six years ago, his wife kept complaining about him not hearing things and turning the television up, and that this was the point when he realized that his hearing loss had progressed to a level where he needed to get help. See December 2016 DRO Hearing Transcript. Service personnel records confirm that the Veteran served in Battery A of the 4th Missile Battalion (Nike Hercules), 59th Artillery and that he served in the capacity of IFC Platoon Leader, with additional duties in the capacity of a “Mess Officer”, Theater Officer and Crypto Custodian. See September 1960 Officer Efficiency Report, Military Personnel Records. His service personnel records also reflect that his military occupational specialty (MOS) was a unit commander, with a decoration/award/commendation/citation award for “Expert Missile Qualification Badge with Bar.” See Certificate of Release or Discharge from Active Duty (Form DD-214). However, his service treatment records (STRs) do not reflect in-service hearing loss and tinnitus; or an illness, injury relating to hearing loss or tinnitus. Nonetheless, in support of his claim, the Veteran submitted two medical opinions on the etiology of his bilateral hearing loss. Specifically, in a June 2014 correspondence, a Board-Certified Hearing Instrument Specialist, J.S., explained that she tested and evaluated the Veteran for hearing loss and the need for hearing aids. She opined that she felt quite confident that the Veteran’s military environment was a factor in him having severe hearing loss. As the rationale for her opinion, she explained that according to his audiogram, his hearing loss is one that is seen when a patient has been around an environment that produced noise at a damaging level. See June 2014 Correspondence from J.S., BC-HIS. In another correspondence, a certified licensed hearing aid specialist, M.A.S. explained that the Veteran underwent a hearing test at his facility on May 2014. He opined that there appears to be a strong case that the Veteran’s time with the Army could be a major contributing factor to his hearing loss today. As the rationale for this opinion, he explained that the Veteran complained of having difficulty with clearing understanding speech, and that testing revealed that he has binaural, sensorineural, high-frequency hearing loss that is consistent with noise exposure. He further explained that the Veteran’s case history reveals that he was exposed to damaging noise levels while in active service; after his separation from service, the Veteran had a career in textiles, but that he was in management and was not exposed to the noise levels that one would normally associate with the industry. See June 2014 Correspondence from M.A.S. In November 2014, the Veteran underwent a VA examination for hearing loss and tinnitus. The VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of an event in service. As the rationale for his opinion, the VA examiner noted that the Veteran’s entrance and exit exams showed normal hearing, bilaterally, with no significant threshold shifts noted; therefore, there was no objective evidence to support a claim of a military-related noise injury. The VA examiner additionally added that according to the Institute of Medicine, there was an insufficient scientific basis to conclude that permanent hearing loss is directly attributable to noised exposure that develops long after noise exposure. See November 2014 VA Examination. However, the Board finds that the VA examiner provided an inadequate rationale for his opinion. First, the VA examiner primarily relied on the lack of evidence of findings of hearing loss in the Veteran’s STRs as the basis of his opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that a VA examination is inadequate where the VA examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records to provide a negative opinion); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Second, although he cited the Institute of Medicine’s conclusion about the prolonged delay in the onset of hearing loss long after noise exposure, the VA examiner’s opinion does not acknowledge or identify the onset of the Veteran’s hearing loss. Instead, the examiner seemingly presumed that the Veteran had delayed-onset hearing loss, simply because of the lack of evidence of findings of hearing loss in service. See Jones v. Shinsheki, 23 Vet. App. 382, 390 (2010) (holding that VA must ensure that a medical opinion is based on sufficient facts or data, and therefore, it must be clear from the examiner’s statements that the he/she has considered all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis). Therefore, without sufficient data (discussion of the date of onset of hearing loss) to support his determination that the Veteran has delayed-onset hearing loss, the VA examiner’s rationale insufficient to support his opinion. Additionally, the VA examination report reflects that the Veteran reported the onset of tinnitus approximately three to four years prior to the VA examination, with no specific incident or circumstances occurring at onset. The VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. As the rationale for this opinion, the VA examiner explained that tinnitus is typically a symptom of noise-induced hearing loss. The examiner also stated that there is no objective evidence of military-related noise injury, including tinnitus, and that the STRs are silent for any complaint or treatment of claimed condition. However, the Board finds that this opinion is inadequate for determining this claim because the VA examiner primarily relied on the lack of evidence of findings of in-service ringing of the ears/tinnitus in the Veteran’s STRs to support the basis of his opinion. See Dalton, 21 Vet. App. at 23. In this regard, after an overall review of the evidence of record, the Board finds that the evidence is in at least relative equipoise and resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss and tinnitus are established. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The evidence of record, including service personnel records and all medical opinions reflects that the Veteran was exposed to high and/or damaging levels of noise while he served on active duty in the Army Artillery Division in the Air Defense Nike Missile System. Although STRs lack complaints and/or treatment for hearing loss or tinnitus, the Veteran provided competent, credible lay statements about the in-service onset of pertinent symptomatology and the progression of his hearing loss and tinnitus since his military service. Furthermore, the medical evidence includes two private opinions, supported by plausible and sufficient rationale, that established a link between his exposure to dangerous levels of noise and his current hearing loss disability. With respect to tinnitus, the evidence of record reflects that the Veteran provided competent, credible lay statements that he had ringing in his ears since his time in service. Given that high and/or dangerous levels of noise exposure is conceded, as well as the Board’s finding that hearing loss was incurred in service, resolving all reasonable doubt in the Veteran’s favor, the Board also finds that the evidence is in at least relative equipoise. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is also established. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107 (West 2012); 38 C.F.R. § 3.102 (2017). Accordingly, based on the foregoing, the service connection claims for bilateral hearing loss and tinnitus are granted. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel