Citation Nr: 18148310 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 13-34 096A DATE: November 8, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT The most competent and probative evidence of record demonstrates that the Veteran’s right ear hearing loss and tinnitus is etiologically related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2018). 2. 2. The criteria for service connection for tinnitus are met. 38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to April 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the AOJ denied service connection claims for bilateral hearing loss and tinnitus. In a March 2011 Notice of Disagreement, the Veteran disagreed with the denials of service connection for right ear hearing loss and tinnitus. A Statement of the Case was subsequently issued in November 2013 and a timely substantive appeal was submitted in December 2013. The Veteran testified before the undersigned Veterans Law Judge in February 2017; a transcript of the proceeding is of record. These matters were most recently before the Board in October 2017, at which time it was remanded for further development. Service Connection - In General Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303 (d). The United States Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the “nexus” requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303 (b), claims for service connection for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309 (a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that “[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.”). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b). Right Ear Hearing Loss and Tinnitus - Analysis The Veteran seeks to establish entitlement to service connection for right ear hearing loss and tinnitus. He reports exposure to acoustic trauma (e.g., gunnery, cannon, and tank fire) in the course of his military duties as a track and wheel mechanic. During his hearing before the undersigned, he described working in the motor pool on a daily basis and being within 50 feet of daily, constant tank firing for two weeks at time, 8 to 12 hours a day, during an 8-month period. As an initial matter, the record reflects a current right ear hearing loss disability for VA purposes (see 38 C.F.R. § 3.385), as well as a diagnosis of tinnitus. See January 2011 VA Audio Examination Report. With respect to in-service disease or injury, the Veteran’s DD Form 214 reflects that his Military Occupational Specialty (MOS) was that of a track and wheel mechanic. In such a position, the Veteran was likely exposed to acoustic trauma. See 38 U.S.C. § 1154 (a). The RO likewise conceded acoustic trauma in the rating decision on appeal (“probable exposure to high noise and/or acoustic trauma while in service is conceded”). Thus, based on his MOS and his statements with specific examples as to his exposure to loud noises during service, in-service acoustic trauma (“injury”) has been established. The remaining question for consideration here is whether the Veteran’s current right ear hearing loss and tinnitus are related to in-service acoustic trauma. The Veteran underwent a VA audio examination in January 2011, however, the Board ultimately deemed the opinion inadequate and an addendum opinion was requested on remand. See October 2017 Board Remand. In an October 2017 addendum, the examiner opined that the right ear hearing loss was less likely than not related to service because the Veteran’s hearing was normal during service and at separation. Notably, the absence of such a diagnosis is not fatal to a claim of service connection hearing loss. See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, the examiner’s opinion was based on an inaccurate factual premise because the Veteran’s right ear hearing was not normal at service separation (which is apparent after the measurements are converted from American Standards Association (ASA) measurements to current ISO (International Standards Organization) measurements). The Board likewise notes that the October 2017 VA examiner did not properly convert the separation audiometer findings from ASA units to ISO units as requested by the Board in its previous remand. In light of the above deficiencies, the opinion is not probative. With respect to tinnitus, the examiner provided a negative opinion based on the Veteran’s apparent non-specific report as to onset. However, the Veteran has consistently reported the onset of his tinnitus as being proximate to service (see Board Hearing Transcript) or approximately 40 years prior to the January 2011 VA examination (i.e., 1971, or one year after separation from service). As the examiner failed to take into account the Veteran’s statements as to onset, the Board finds the opinion to be of little probative value. The Board has considered the remaining probative evidence of record, to include the confirmed in-service acoustic trauma; decreased (right) hearing acuity at separation in 1970; the Veteran’s competent and credible testimony that he was exposed to in-service cannon/tank artillery noise and its concussive effects and that he experienced auditory/tinnitus symptoms proximate to service; and the lack of intercurrent hearing loss/tinnitus causes (i.e., denial of post-service occupational noise exposure and recreational noise exposure without the use of hearing protection), and finds that such weighs in favor of a nexus between his current right ear hearing loss and tinnitus and any acoustic trauma during service. 38 C.F.R. §§ 3.303(b), (d). Resolving any remaining reasonable doubt in the Veteran’s favor, service connection for right ear hearing loss and tinnitus is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel