Citation Nr: 18150897 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-18 961A DATE: November 16, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during in-service combat exposure. 2. The Veteran has a current disability of bilateral sensorineural hearing loss for VA purposes. 3. The bilateral sensorineural hearing loss is due to the in-service combat noise exposure. 4. The Veteran has a current disability of tinnitus. 5. The current tinnitus is due to the in-service combat noise exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 and April 1968. These matters are on appeal from a May 2014 rating decision issued by the Regional Office (RO) in Hartford, Connecticut. The Veteran filed a notice of disagreement in October 2014, asserting his disagreement with the RO’s denial of service connection for tinnitus and bilateral sensorineural hearing loss. The RO issued a May 2015 Statement of the Case denying service connection for tinnitus but did not address the issue of service connection for bilateral sensorineural hearing loss. The Veteran filed a substantive appeal on June 2015, appealing service connection for both bilateral sensorineural hearing loss and tinnitus. Both issues are both properly on appeal before the Board. Notwithstanding the absence of a statement of the case on the issue of service connection for hearing loss, the notice of disagreement gives the Board jurisdiction over the issue of service connection for hearing loss. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (stating that a notice of disagreement is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) (“appellate review of an RO decision is initiated by an NOD”); Marsh v. West, 11 Vet. App. 468, 470 (1998) (“an untimely NOD deprives [BVA] of jurisdiction”); Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that the Board’s exercise of jurisdiction over a matter is derived from the notice of disagreement). The purpose of the statement of the case is to provide the Veteran a summary of the evidence, summary of the legal authority, and basis for denial of the claim to allow the Veteran to present written and/or oral arguments before the Board to support the appeal. 38 C.F.R. § 19.29. Information furnished with the statement of the case includes notice of the right to file and time limit for filing a substantive appeal to the Board. 38 C.F.R. §19.30. Because the Board is recognizing the issue as being on appeal, and is granting service connection for hearing loss, the purpose of the statement of the case has been rendered moot by full grant of the benefit; therefore, there can be no prejudice to the Veteran by not issuing a statement of the case on the issue of service connection for hearing loss. The Veteran testified in Hartford, Connecticut, at a videoconference Board hearing in October of 2018 before the undersigned Veterans Law Judge. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). The Board grants service connection for bilateral sensorineural hearing loss and tinnitus, constituting a full grant of the benefits sought on appeal with respect to these issues; therefore, no further notice or assistance or discussion of VA’s duty to notify and to assist is necessary. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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). The Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) which are “chronic” diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). Where a veteran served ninety days or more of active service and the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Under the combat presumption, the claimant is still required to meet other evidentiary burdens as to service connection, such as whether there is a current disability and whether there is a link between service and the currently claimed disability. See Wade v. West, 11 Vet. App. 302 (1998) (holding that evidence of a causal nexus between an in-service event and a current disability is still required even when a veteran is shown to have participated in combat). For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 1. Service Connection for Bilateral Sensorineural Hearing Loss The Veteran contends that he currently has bilateral sensorineural hearing loss. The Veteran testified that the base where he was stationed during service was attacked and, as a result, he was exposed to loud combat noise. See October 2018 Board Hearing. The Veteran contends that the combat noise exposure caused the bilateral sensorineural hearing loss. Id. The Board finds that the Veteran currently has a bilateral sensorineural hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. A February 2015 VA audiometric examination report shows pure tone thresholds of 40 dB or greater at the frequencies of 3000 and 4000 Hz in both ears. In addition, the VA examiner diagnosed bilateral sensorineural hearing loss. Next, the Board finds that the Veteran was exposed to in-service loud combat noise. The DD Form 214 reflects that the Veteran was stationed in the Republic of Vietnam. At the October 2018 Board hearing, the Veteran credibly testified that he was exposed to loud combat-related noises when the base was attacked during the TET Offensive while stationed in the Republic of Vietnam. Even though the Veteran’s military occupational specialty (MOS) was an image interpreter, so is not itself suggestive of combat, the presence on the base under enemy attack during the TET offensive does suggest loud combat noise exposure. The Board credits the Veteran’s testimony about combat noise exposure in Vietnam. Loud noise exposure, to include artillery, mortar, and gunfire noises, is consistent with the circumstances, conditions, and hardships of in-service combat in the Republic of Vietnam. Service treatment records demonstrate that bilateral sensorineural hearing loss was not noted on the February 1966 service entrance examination. There are no complaints of or treatment for bilateral sensorineural hearing loss during service, and bilateral sensorineural hearing loss was not noted on the April 1968 service separation examination. The first report of symptoms related to bilateral sensorineural hearing loss in the record are in the January 2014 Statement in Support of Claim. In the February 2015 VA examination, the examiner diagnosed bilateral sensorineural hearing loss for VA purposes (that meet the criteria at 38 C.F.R. § 3.385). The VA examiner considered the Veteran’s report of military noise exposure and the MOS of image interpreter, which indicates a low probability of in-service noise exposure. Even after minimizing the amount of noise exposure in service by not recognizing the combat noise exposure, the VA examiner ultimately opined that the Veteran’s bilateral sensorineural hearing loss is at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service, reasoning that noise exposure is a known causative factor in the development of hearing loss. The VA examiner further reasoned that, because the pertinent audiometric frequencies of 3000 Hz and 6000 Hz were not tested on service entrance or separation examinations, a threshold shift during service cannot be ruled out. The Veteran has consistently claimed that the bilateral sensorineural hearing loss was caused by noise exposure in service. See January 2014 Statement in Support of Claim, October 2014 Notice of Disagreement. The record contains medical history of the bilateral sensorineural hearing loss claim. See November 2013 VA Treatment Records, December 2014 VA Treatment Records, January 2015 VA Treatment Records. While some of these records indicate that the Veteran reported no hearing problems, more persuasive on the question of hearing problems is the fact that the Veteran simultaneously reported ringing in the ears. Considering the language and context of both statements, the Board infers that the Veteran did not intend to report that he had no hearing problems. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed bilateral sensorineural hearing loss is due to the in-service combat noise exposure. Resolving reasonable doubt in the Veteran’s favor, the Board finds that hearing loss was directly incurred in service. As direct service connection is being granted based on presumed combat noise exposure in service, there is no need to discuss entitlement to service connection on any other basis, including presumptive service connection as a chronic disease under 38 C.F.R. § 3.303(b), as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. §7104. 2. Service Connection for Tinnitus The Veteran contends that he currently has tinnitus and, at the February 2015 VA examination, he asserted that he has been experiencing symptoms of tinnitus since discharge from service. The Veteran has consistently claimed that the tinnitus was caused by noise exposure in service. See January 2014 Statement in Support of Claim, October 2014 Notice of Disagreement. The record contains several reports from the Veteran in regard to the tinnitus claim. See November 2013 VA Treatment Records, December 2014 VA Treatment Records, January 2015 VA Treatment Records. The Board finds that the Veteran currently has tinnitus. The February 2015 VA audiometric examination report reflects a diagnosis of tinnitus. In addition, the Veteran has credibly and consistently reported that he has tinnitus on several occasions. See November 2013 VA Treatment Records, December 2014 VA Treatment Records, January 2015 VA Treatment Records, February 2015 VA Examination; Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Moreover, as explained above, the Board finds that the Veteran was exposed to in-service combat noise. Service treatment records demonstrate that tinnitus was not noted on the February 1966 service entrance examination. There are no complaints of or treatment for tinnitus during service. Tinnitus was not noted on the April 1968 service separation examination. The first report of symptoms related to tinnitus on the record are in the January 2014 Statement in Support of Claim. After a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the tinnitus is due to the in-service combat noise exposure. In the February 2015 VA examination, the VA examiner opined that the Veteran’s tinnitus is at least as likely as not (50 percent probability or greater) caused by or a result of military noise exposure. In rendering this opinion, the VA examiner considered the Veteran’s MOS and the Veteran’s report of military noise exposure, noting that noise exposure is a known causative factor in the development of tinnitus. (Continued on the next page)   Resolving reasonable doubt in the Veteran’s favor, the Board finds that tinnitus was directly incurred in service. As direct service connection is being granted based on presumed combat noise exposure in service, there is no need to discuss entitlement to service connection on any other basis, including presumptive service connection as a chronic disease under 38 C.F.R. § 3.303(b), as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. §7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel