Citation Nr: 18152388 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-32 609 DATE: November 21, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for residuals of a traumatic brain injury (TBI), to include neurocognitive and major depressive disorders, is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss and tinnitus were incurred in service. 2. The Veteran’s neurocognitive disorder is shown to be due to military service, to include head trauma as a boxer therein. 3. The Veteran’s major depressive disorder is shown to be due to the service-connected neurocognitive disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of a TBI, to include neurocognitive and major depressive disorders, are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to April 1965, with additional subsequent service in the US Marine Corps Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, although the Agency of Original Jurisdiction (AOJ) has characterized the above issues on appeal as claims to reopen service connection, the Board reflects that those issues were initially denied in a December 2014 rating decision, which is not final due to the Veteran continually submitting new and material evidence until finally completing appeal of that decision, the Board has characterized those issues on appeal as noted above. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2011). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Bilateral Hearing Loss and Tinnitus The Veteran claims entitlement to service connection for bilateral hearing loss. Specifically, he asserts that during active duty and Reserve service, he was exposed to noise in his occupation working on the flight line. In cases where a hearing loss disability is claimed, impaired hearing is considered 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; or when the auditory thresholds for at least three of the above frequencies 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 (2016). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Initially, the Veteran’s December 2014 VA examination documents right ear hearing loss of or greater than 40 dB at 500 Hz, 2,000 Hz, 3,000 Hz, and 4,000 Hz, and left ear hearing loss greater than 40 percent at all applicable levels. Thus, a bilateral hearing loss disability exists in this case. Furthermore, the Board reflects that the Veteran’s Form DD-214 indicates he served as maintenance personnel as an aircraft mechanic. Reserve documents, including those submitted in July 2009, reflect that the Veteran continued work in flight line operations. The nature of his service is consistent with a military occupation where significant noise exposure over a prolonged period is likely. Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event. The Board further notes that puretone threshold measurements were not obtained during the Veteran’s period of active service; rather, his separation from active duty in April 1965 show a whisper test of 15/15. As the December 2014 VA examiner indicated, the whisper test is not a valid test. Instead, the first audiometric evidence in the claims file is in a November 1974 Reserve enlistment examination which showed hearing threshold shifts and loss under Hensley, although the audiometric data at that time did not demonstrate a hearing loss disability under 38 C.F.R. § 3.385. Such evidence of an initial manifestation of hearing loss during service and after a period of service in which he suffered acoustic trauma bolsters the Veteran’s competent and credible evidence that his hearing loss began in or was otherwise the result of military service. In short, and by resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record demonstrates that the Veteran’s bilateral hearing loss was incurred in military service. Service connection for bilateral hearing loss is therefore warranted at this time based on the evidence of record in this case. See 38 C.F.R. §§ 3.102, 3.303. Turning to the Veteran’s tinnitus, the Board initially notes that tinnitus is capable of lay diagnosis; moreover, the December 2014 VA examiner found that the Veteran had tinnitus. Thus, a current disability is shown in this case. The Board reflects that the December 2014 VA examiner opined that the Veteran’s tinnitus was less likely than not related to noise exposure in service, although he did not provide a rationale for that conclusion. Moreover, the audiological Disability Benefits Questionnaire (DBQ) indicates that tinnitus is a known symptom of hearing loss, although the examiner does not appear to have contemplated whether the Veteran’s tinnitus was secondary to his hearing loss. Regardless, as the DBQ demonstrates that tinnitus is a known complication of hearing loss and the Veteran is service connected for hearing loss as discussed above, and as the Veteran indicated that his tinnitus onset during military service, the Board, by resolving reasonable doubt in the Veteran’s favor, finds that his tinnitus was also incurred in service as a result of his noise exposure therein. Service connection for tinnitus is therefore also warranted in this case based on the evidence of record. See Id. Residuals of TBI, to include Neurocognitive and Psychiatric Disabilities The Veteran asserts that his neurocognitive disability was incurred while boxing in service. Although the Veteran’s service treatment records do not mention his having boxed in service, the Veteran submits an article dated March 17, 1968, in which he is mentioned by name as participating in a Golden Gloves boxing match. Several buddy statements submitted by the Veteran additionally document that the Veteran boxed while in service. The Veteran underwent a VA examination in May 2015, at which time he was diagnosed with a neurocognitive and major depressive disorders. That examiner opined that the neurocognitive disorder was at least as likely as not the result of head trauma during service as a boxer; the examiner further opined the major depressive disorder was related to and secondary to the neurocognitive disorder. The Board finds that those opinions are the most probative evidence of record. Accordingly, as the Veteran’s neurocognitive disability is due to military service, to include head trauma as a result of being a boxer, and as his major depressive disorder is shown to be related to his neurocognitive disorder, service connection for residuals of a TBI, to include neurocognitive and major depressive disorders, is warranted based on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303, 3.310. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel