Citation Nr: 18150675 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-43 885 DATE: November 15, 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 myopathy, to include as due to herbicide exposure is remanded. Entitlement to anti-TS HDS neuropathy, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is as likely as not related to his active duty service. 2. The Veteran’s tinnitus is as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to April 1966. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the basic service connection principles outlined above, hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the puretone threshold for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus are due to acoustic trauma he experienced during service. The Veteran has current diagnoses of bilateral hearing loss and tinnitus. As such, element one under Shedden is met. In a May 2010 VA 21-2507a: Request for Physical Examination, the agency of original jurisdiction (AOJ) conceded exposure to acoustic trauma. Therefore, the second Shedden element is met. The Veteran’s service treatment records (STRs) do not document complaints, treatments, or diagnosis of hearing loss or tinnitus. The disposition of this appeal turns upon the question of whether the Veteran’s bilateral hearing loss and tinnitus were incurred during service or resulted from an in-service injury or event such as acoustic trauma. a. Hearing loss In September 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his hearing loss. The Veteran stated that he was exposed to noise in the military from mortars and recoilless rifles. The Veteran also hunted. He denied using ototoxic drugs and denied a history of ear surgery. Occasionally, he experienced dizziness. The Veteran had a family history of hearing loss. Beginning in early childhood, he had a history of ear infections and still experienced left ear pain. The examiner noted that the Veteran had sensorineural hearing loss in the high frequency range of 500-4000 Hz in his left ear and in the high frequency range of 6000 Hz in his right ear. The Veteran’s right and left ear speech discrimination scores on the Maryland CNC were 92 and 88 percent, respectively. The examiner noted that the Veteran had normal hearing thresholds at the time of separation. Therefore, the Veteran’s hearing loss is less likely than not (less than 50 percent probability) caused by or a result of an event in military service. In June 2014, the AOJ obtained an addendum opinion. The examiner noted that while in the military, the Veteran had several medical entries regarding ear aches, otitis externa, and serous otitis with the last entry being approximately one year prior to separation. At separation, the Veteran’s audiometric evaluation indicated that his hearing was well within normal limits with no significant threshold shifts. Additionally, the Veteran’s hearing was normal at separation, there were no complaints of ear problems for the previous one-year period, and he denied ear trouble at separation; therefore, it is not as likely as not that the Veteran’s current hearing loss is related to his military service. The examiner further stated that in its landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine (IOM) stated that “there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The examiner stated that the study remained the definitive consensus on this matter. Based on the results of the VA examination, to include the Maryland CNC scores, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. Additionally, the Board finds the Veteran’s statements regarding his hearing loss to be credible. The Veteran stated that he experienced noise exposure when he worked as an infantryman. See Layno v. Brown, 6 Vet. App. 465 (1994). His military records corroborate his assertions. Additionally, noise exposure has been conceded. While the Board acknowledges the examiner’s opinion, the record establishes that service connection is warranted. The examiner appears to have based his negative nexus opinion on the lack of documentation of hearing loss in the Veteran’s service treatment records. However, in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the Court stated that [applicable VA regulations do] not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.... Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 159-60. After resolving all doubt in the Veteran’s favor, the Board finds the evidence supports a grant of service connection for bilateral hearing loss disability, as there is competent and credible evidence of both in-service noise exposure and post-service bilateral hearing loss disability for VA compensation purposes. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. b. Tinnitus In September 2013, the VA examiner confirmed the Veteran’s tinnitus. The examiner opined that the Veteran’s tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner stated that the Veteran’s tinnitus had its onset in 2003, i.e., many years after separation from miliary. In the June 2014 addendum opinion, the examiner stated that at the Veteran’s military separation examination, the Veteran denied ear trouble, there were no complaints of tinnitus during service, and the Veteran stated that he first noticed tinnitus many years after separation from the military. The examiner opined that it is not as likely as not that the Veteran’s tinnitus is related to his military service. The Veteran is competent to identify tinnitus as such condition is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran stated that he has experienced tinnitus ever since his exposure to acoustic trauma in service. The Board notes that this statement is not inconsistent with the circumstances of his MOS. Therefore, the Board finds his report to be competent and credible. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2). Based on the forgoing, the Board finds that service connection for tinnitus is warranted as it was incurred coincident with service. REMANDED ISSUES The Veteran has been diagnosed with TS-HDS immune-mediated neuropathy and myopathy. The Veteran stated that he was stationed in Korea and Vietnam where he was possibly exposed to Agent Orange. The Veteran contends that his neuropathy and myopathy are due to this Agent Orange exposure. A veteran who during active military service between April 1, 1968, and August 31, 1971, served in a unit that operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, as determined by the Department of Defense (DOD), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iv). The Board notes that the Veteran’s period of service, April 1963 to April 1966, predated the period during which herbicide use in Korea has been established, as is noted above, and he may not be presumed to have been exposed. However, the Veteran stated that in 1963, he was on TDY in Vietnam for about a week. He stated that he was possibly exposed to herbicides during this period. The Board notes that a Formal Finding of Unavailability was issued stating that the Veteran did not provide enough information to corroborate his herbicide exposure. The Board finds that additional development should be undertaken to verify the Veteran’s claimed herbicide exposure. The matters are REMANDED for the following action: 1. Send a development letter to the Veteran asking him to provide details for purposes of verifying exposure to Agent Orange in Vietnam. 2. Make appropriate requests to the Joint Services Records Research Center (JSRRC) for verification of the Veteran’s reported herbicide agent exposure in accordance with the M21-1. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.7.a. If the JSRRC is unable to verify the exposure, issue a Formal Finding regarding the unavailability of the Veteran’s records. 3. Obtain and associate all outstanding VA treatment records with the claims file. 4. If it is found that the Veteran was exposure to herbicides, any additional development deemed necessary may be conducted, to include obtaining a medical opinion if warranted. 5. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel