Citation Nr: 18150166 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-26 184 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is likely related to active military service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran currently has tinnitus that is secondary to his bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection are met for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection are met for tinnitus. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1968 to August 1972. During his period of service, the Veteran earned the National Defense Service Medal, Vietnam Service Medal, Air Force Good Conduct Medal, Republic of Vietnam Campaign Medal, Air Force Outstanding Unit Award, and Small Arms Expert Marksmanship Ribbon. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes 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 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). 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 (2017). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Bilateral Hearing Loss With respect to the first element of service connection, a current diagnosis, the Veteran underwent a VA audio examination in April 2015. The examiner diagnosed bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385 (2017). Thus, the current disability criterion for service connection is met for bilateral hearing loss. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran has reported that he was exposed to noise during service as a result of loud aircrafts, artillery, and bunker mortar fire. The Veteran also indicated that he was exposed to dogs barking in his ear in close quarters. The Veteran’s DD-214 confirms that his military occupational specialty (MOS) was Policeman. The Veteran also earned the Small Arms Expert Marksmanship Ribbon. The Board finds that the Veteran is competent to report exposure to loud noise in service, and that such assertion is credible because it is consistent with the circumstances of service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, in-service noise exposure can be conceded, and the second element of service-connection is met for bilateral hearing loss. See Shedden, supra. The remaining question is whether there is a medical nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. See Shedden, supra. As noted above, the Veteran was afforded a VA examination in April 2015. The examiner opined that it was not as likely as not that the Veteran’s hearing loss was related to military noise exposure, as the Veteran’s service medical records documented normal bilateral thresholds when tested in September 1968 and May 1972. The Veteran’s post-service civilian occupation was negative for noise exposure. Despite the Veteran’s reports of in-service noise exposure without the use of hearing protection, the examiner stated that the Veteran’s separation audiogram indicated normal hearing sensitivity bilaterally three months prior to separation from service. Based on the evidence of record, the examiner opined that it was at least as likely as not that the Veteran’s hearing loss was caused by some other source and aging. A private opinion was submitted by Dr. J. M. in July 2016. The physician indicated that the Veteran had a significant history of noise exposure, which only occurred during his time in the military. He further noted that the Veteran served as a sentry guard for an Air Force base. This required extensive firearm training without hearing protection, work in and around jet engines, as well as handling of barking sentry dogs. The Veteran’s family history was negative for hearing loss and he had no history of significant ear infections. As such, Dr. J. M. opined that the unprotected noise exposure during the Veteran’s service was the cause of his hearing loss. With regard to the final element of the Shedden analysis, the nexus element, the Board finds that the evidence is at least in equipoise as to whether this element is satisfied. The Board acknowledges the April 2015 negative VA opinion. However, the April 2015 examiner based her negative finding on the Veteran having a normal audiogram at separation. The Board notes that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, where there is no evidence of hearing disability until many years after separation from service, “[i]f evidence should sufficiently demonstrate a medical relationship between the Veterans’ in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As such, the Board finds that the April 2015 opinion is inadequate and cannot serve as the basis of a denial of service connection. In light of the foregoing, as well as the Veteran’s credible lay statements of exposure to acoustic trauma during service, his competent descriptions of impaired hearing since service, a finding of bilateral hearing loss disability under 38 C.F.R. 3.385 during the pendency of the claim, and the positive nexus opinion submitted in July 2016 by his private physician, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to active service. Accordingly, the benefit-of-the-doubt will be conferred in the Veteran’s favor and the claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus With regard to claimed tinnitus, the Board notes that the Veteran’s April 2015 VA audio examination indicates a diagnosis of tinnitus. Further, by this decision, the Veteran is service-connected for bilateral hearing loss. Thus, the first and second elements of the Wallin analysis has been met. The remaining question is whether there is a medical nexus between the Veteran’s service-connected bilateral hearing loss and his current tinnitus. As indicated above, the Veteran appeared for a VA audio examination in April 2015. The examiner indicated that the Veteran had a diagnosis of clinical hearing loss and opined that his tinnitus was at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Accordingly, the Board finds there is sufficient evidence to demonstrate a nexus between the Veteran’s service-connected hearing loss and his tinnitus. Thus, the third element of Wallin is established and service connection for tinnitus is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel