Citation Nr: 18143563 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-31 863 DATE: October 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a back disorder is remanded. FINDINGS OF FACT 1. According all benefit of the doubt to the Veteran, bilateral hearing loss is the result of active service. 2. According all benefit of the doubt to the Veteran, bilateral tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus are satisfied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from September 1964 to September 1967. He served in the Republic of Vietnam from October 1965 to October 1966. The Veteran’s claim for service connection for bilateral hearing loss was denied in an unappealed 2009 rating decision, when the agency of original jurisdiction (AOJ) denied service connection based on a finding that the evidence of record did not establish the Veteran was exposed to acoustic trauma during active service and on a finding that service treatment records showed no complaints or treatment for hearing loss during active service. Since then, service personnel records (SPRs) were received in January 2016, showing that the Veteran served in Vietnam from October 1965 to October 1966, and that he served in military occupational specialties (MOSs) and was assigned to units in which it was likely that he was exposed to acoustic trauma. Accordingly, this issue will be reconsidered, and new and material evidence need not be submitted to reopen it. See 38 C.F.R. § 3.156(c) (2017). In July 2017, the Veteran’s representative, Chisholm Chisholm & Kilpatrick, Ltd., Attorneys at Law, withdrew from representing the Veteran. The Veteran was copied on this letter of withdrawal, but has not elected to appoint another representative. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence must show: (1) the existence of a present 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, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as sensorineural hearing loss and tinnitus are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307 (a), 3.309(a). In addition, where certain chronic diseases, such as sensorineural hearing loss and tinnitus, are shown during active service to a disabling degree, subsequent manifestations of the same chronic diseases at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For hearing loss to be considered a disability that may be service-connected under VA regulations, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz must measure 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz must measure 26 decibels or greater; or speech recognition scores using the Maryland CNC Test must measure less than 94 percent. See 38 C.F.R. § 3.385. The Board will consider all applicable theories of service connection in determining whether service connection may be awarded the Veteran’s claimed disabilities. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran seeks service connection for bilateral hearing loss and tinnitus. The Board observes that service connection may be established by showing continuity since service, under 38 C.F.R. §§ 3.303, 3.309(a) as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus. Concerning the claims for both hearing loss and tinnitus, there is no dispute as to elements one and two under Shedden. The Veteran is diagnosed with bilateral hearing loss within the meaning of 38 C.F.R. § 3.385 and with tinnitus. See April 2016 VA Examination for Hearing Loss and Tinnitus. The VA examiner indicated that the Veteran stated the onset of his tinnitus was during active service, and that the symptoms had been present consistently since then. In addition, the Veteran’s assertions of in-service noise exposure are corroborated by SPRs that show the Veteran received training as an ammunition apprentice at Fort Campbell; served in Vietnam as an ammunition and missile/rocket explosive helper assigned to the 630th Ordnance Company; and served as an ordnance supply specialist and instructor at HHC BCT Com Gp at Fort Leonard Wood. See Military Personnel Record (rec’d 1/19/2016), p. 101 of 115. However, there is dispute as to element three under Shedden, the cause of the Veteran’s hearing loss and tinnitus. The Board will discuss each in turn. a) Hearing Loss Service treatment records (STRs) contain audiometric test results revealing improvement in hearing as well as diminished hearing during the Veteran’s active service. All audiograms were conducted prior to November 1967, and the test results are not notated as having been reported in standards set forth other than by the American Standards Association (ASA). Thus, the Board has assumed that all test results are reported in ASA. With this in mind, the Board finds that STRs overall establish a decrease bilaterally at the 500, 1000, and 2000 thresholds during active service when comparing the Veteran’s entrance physical conducted in 1964 with his periodic physical conducted in 1965 and his discharge physical conducted in July 1967. See STRs (rec’d 10/9/2009). Notwithstanding, the 2016 VA examiner opined that hearing loss was less than likely due to military noise exposure during active service based on the finding that STRs contained no objective findings of hearing loss. Rather, the VA examiner explained, audiometric tests results conducted during active service indicated hearing sensitivity within normal limits bilaterally and showed no negative threshold shifts consistent with noise-induced shifts, whether calculated under either ASA standards or standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The VA examiner further explained that the medical evidence did not show complaints or findings of hearing loss until many years after the Veteran’s discharge, and that medical findings from the Institute of Medicine shows there is insufficient scientific evidence to conclude that permanent hearing loss directly attributable to noise exposure would develop long after the exposure to noise occurred. See April 2016 VA Examination for Hearing Loss and Tinnitus, pp. 4-5. The Board observes that VA examiner’s opinion is predicated, at least in part, on a finding that the Veteran did not exhibit hearing loss during active service. Yet, STRs show that his hearing did in fact diminish during active service, and that he was discharged with bilateral findings of overall diminished hearing in three of the five thresholds required to show hearing loss under 38 C.F.R. § 3.385—even though the results reported during active service were insufficient to establish hearing loss within the meaning of VA regulations at that time. Turning to the positive evidence of record, the Veteran has submitted the 2012 statement of his eye doctor, D.W.M., M.D., opining that the Veteran sustained early ocular injury consistent with concussive damage of the type caused by exploding ordinance; and the lay statements of two witnesses, his son, E.W., and a friend, L.K., who collectively attest they have observed the Veteran to exhibit impaired hearing since 1994. See April 2012 statement of D.W.M., M.D. (filed in Congressionals, rec’d 4/8/2013, p. 13 of 16). See 2012 Lay Statements (rec’d 4/20/2012). This evidence, when viewed in context of STRs showing diminished hearing and SPRs establishing that the Veteran trained, worked, and served as an instructor in MOSs involving ammunition and missile/rocket explosives as well as ordnance supply, strongly corroborates the Veteran’s argument he sustained acoustic trauma during active service causing diminished hearing which has remained present, worsening from then to the present. The U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§ 3.303(d). Given the foregoing, the Board finds the evidence as to the cause of the Veteran’s current bilateral hearing loss to be in equipoise. Accordingly, and affording all benefit of doubt to the Veteran, service connection for bilateral hearing loss is appropriate. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. b) Tinnitus As above noted, the Board finds that the evidence of record corroborates the Veteran’s in-service exposure to acoustic trauma. The Veteran stated to the 2016 VA examiner that his tinnitus started during active service and has been present, continuously, since then to the present. See April 2016 VA Examination for Hearing Loss and Tinnitus, p. 6. The 2016 VA examiner opined that tinnitus was less than likely due to military noise exposure during active service based on a finding that STRs showed no objective findings of hearing loss or significant threshold change during military service. Without such objective evidence, the VA examiner explained, there was no basis on which to conclude that the claimed tinnitus was caused by noise exposure. However, the Board observes that the Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, as explained above, the Board has conceded the Veteran’s exposure to acoustic trauma. The Veteran’s exposure to in-service acoustic trauma during active service is more than probable, given his training as an ammunition apprentice, and his MOSs as ammunition and missile/rocket explosive helper, and ordnance supply specialist and ammunition instructor. Thus, the Board accords significant deference to his statements of in-service noise exposure. The Board finds the medical evidence as to the cause of the Veteran’s tinnitus to be, at the least, in equipoise. Affording all benefit of the doubt to the Veteran, service connection for bilateral tinnitus is appropriate. REASONS FOR REMAND Entitlement to service connection for a back disorder. The medical evidence reflects that the Veteran is diagnosed with thoracic and lumbar strain, meeting the first element of Shedden. The Veteran also meets the second element of Shedden, in that STRs show that he reported continuing back problems on a 1965 periodic report of medical history. He was subsequently treated for back complaints in 1965. Following this, STRs show he was in a motor vehicle accident (MVA) in 1967, involving a jeep, although the entry reflects he was treated for a bruised left hip. There is dispute as to the third element of Shedden. A 2012 VA examiner opined that the Veteran’s current back disorder is less likely than not the result of his complaints of back pain in 1965 or his 1967 MVA. The VA examiner pointed out that no back disorder was noted on the Veteran’s discharge examination in 1967, and explained that the record lacks sufficient medical evidence to support a causal link between the current back disorder and a single complaint of back pain in 1965 or injury to the left hip in 1967. However, the VA examiner did not make note of the Veteran’s report of continuing back problems in his report of medical history in 1965. In addition, SPRs received in 2016, after the 2012 VA examination, show that the Veteran was assigned to the 630th Ordnance Company (Ammo) in January 1965. He trained as an ammunitions apprentice and then worked as an ammunitions and missile/rocket explosive helper until October 1966, including from June 1965 to October 1966, when he served with the company in Vietnam. The 1965 periodic examination was conducted in June 1965, at the end of his ammunitions apprentice training and prior to mobilization to Vietnam. The Board observes that the Veteran’s continuing back problems as reported in 1965 could reflect injury caused by lifting and carrying ammunition in his training as an ammunitions apprentice, which very likely would have continued throughout his Vietnam service as ammunitions and missile/rocket explosive helper. Because these records were not present in the file at the time of the 2012 VA examination for back, the VA examiner was unaware of his MOS, and of his service in Vietnam. Accordingly, the Veteran’s claim must be reconsidered in light of these pertinent service records. See 38 C.F.R. § 3.156(c). The matter is REMANDED for the following action: 1. Take all required actions to obtain additional updated relevant VA treatment records, and to obtain identified private treatment records, if applicable. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disorder. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was accomplished. All studies deemed appropriate shall be performed, and all findings shall be set forth in detail. The examiner is specifically asked to consider the Veteran’s lay testimony and in the context of his MOSs and units of assignment as shown in the SPRs, as well as his STRs, and to answer the following question: (a.) Is it as likely as not (50 percent probability or greater) that any back disorder is the result of an in-service event or injury, to include wear and tear from lifting and carrying ammunition as an ammunition apprentice and ammunition and missile/rocket helper from 1965-1966, and/or the 1967 MVA? DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel