Citation Nr: 18148797 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 828 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The probative evidence of record is at least in relative equipoise that the Veteran’s bilateral hearing loss originated in service or is otherwise attributable to his active duty service. 2. The probative evidence of record is at least in relative equipoise that the Veteran’s currently diagnosed tinnitus originated in service or is otherwise attributable to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1969 to March 1971. Service Connection Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran 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”--the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Chronic diseases, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated during service if manifested to a compensable degree (10 percent) within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he contends is the result of noise exposure during service. Service treatment records are silent for any complaints, diagnosis, or treatment of hearing loss. Post service, in a November 2012 statement, the Veteran reported that he was exposed to live gunfire and explosions while serving in the DMZ, which resulted in acoustic trauma. The Board notes that the Veteran’s DD-214 indicates he served as an infantryman. In addition, the RO previously conceded a high probability of military noise exposure in the August 2016 statement of the case, based on the Veteran’s service duties. Accordingly, the Board finds that in-service noise exposure has been established. An August 2016 VA examination confirmed a diagnosis of bilateral hearing loss, but the examiner opined that the Veteran’s hearing loss was less likely than not related to military noise exposure because the Veteran first sought treatment for hearing loss in 2006, several years after separation. The examiner further noted that the Veteran reported a gradual onset of hearing loss. Citing medical literature in the form of an Institute of Medicine (IOM) study in 2005, the examiner stated that noise-induced hearing loss occurs immediately and does not have a delayed onset of weeks, months, or years after the exposure event. The Veteran underwent a private audiological evaluation in October 2016, which revealed sensorineural hearing loss. It was noted that the Veteran was an infantryman and did not have proper hearing protection in the military. The audiologist opined that, based upon the Veteran’s noise exposure in the military and a review of the Veteran’s medical and audiological history, his hearing loss was at least as likely as not due to military noise exposure. The Board finds that, affording the Veteran the benefit of the doubt and considering the medical record in its entirety, there is adequate competent medical evidence favoring the existence of a medical nexus between the Veteran’s bilateral hearing loss and his military service. The Board observes that the Court of Appeals for Veterans Claims (Court) has recently noted that medical opinions citing the IOM report in the same manner as the August 2016 examiner appear to misstate or incompletely contemplate the IOM report’s pertinent conclusions. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). The Court has repeatedly directed attention to the fact that, although the IOM report states “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM Report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. In light of the October 2016 private audiological evaluation finding a positive nexus between the Veteran’s military noise exposure and his current bilateral hearing loss, as well as the Court’s recent holding with regard to reliance on the IOM report in evaluation of the onset of hearing loss, the Board finds that the evidence for and against the claim is in relative equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. 2. Service connection for tinnitus The Veteran seeks service connection for tinnitus, which he contends is the result of noise exposure during service. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. Turning to the evidence of record, service treatment records are silent for any complaints, diagnosis, or treatment of tinnitus. An August 2016 VA examination confirmed a diagnosis of recurrent tinnitus. The Veteran reported an onset of around the 1980’s. The examiner opined that the Veteran’s tinnitus was less likely than not caused by military noise exposure because the Veteran reported a gradual onset of tinnitus several years after separation. Citing medical literature, the examiner stated that tinnitus caused by noise exposure is immediate and there is no delay of onset. As set forth above, the Veteran served as an infantryman, which yielded a high probability of military noise exposure. The Board finds that in-service noise exposure has been established. The Board finds the Veteran’s lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. In particular, the Board finds the Veteran competent to report ringing in the ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). While the August 2016 VA examination provided a negative nexus opinion regarding whether the Veteran’s tinnitus was related to his active duty service, the Board finds that, given the Veteran’s credible lay statements, the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel