Citation Nr: 18152609 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-28 354 DATE: November 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss disability is related to his active military service. 2. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1154(b), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to January 1970 and January 1991 to May 1991. He earned a Fleet Marine Forces Combat Operations Insignia during service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran had a hearing before the undersigned Veterans Law Judge at the local RO. The transcript from the hearing has not yet been associated with the file, but as the benefits sought are being granted in full, the transcript is not necessary for a decision in this case. Entitlement to service connection for bilateral hearing loss and tinnitus Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. The provisions of 38 C.F.R. § 3.303(b) apply only to the specific chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), which include degenerative arthritis, sensorineural hearing loss and tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). For VA compensation purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Nevertheless, even when the claimed cause of a disability is established by lay testimony, this does not prevent a veteran from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service department records confirm that the Veteran participated in combat operations in the Republic of Vietnam, as does his receipt of the Marine Forces Combat Operations Insignia. Service treatment records (STRs) do not show complaints or treatment for hearing loss. At the January 1970 separation evaluation, an audiogram was not taken. The Veteran was noted to have 15/15 Whisper Voice (WV) hearing in his left ear. Right ear WV hearing was not reported. In February 2014, the Veteran submitted a private audiogram. It confirmed diagnoses of mild to moderately-service mixed hearing loss in both ears and intermittent long-term tinnitus. In October 2014, the Veteran was afforded a VA audiology examination. An audiogram results confirmed bilateral hearing loss. 38 C.F.R. § 3.385. The examiner diagnosed bilateral sensorineural hearing loss. He furnished a negative medical opinion for both ears. He cited an absence of hearing loss shown in STRs and an Institute of Medicine study weighing against delayed onset hearing. The study found that if hearing was normal immediately after noise exposure, it was unlikely that any delayed effects would occur. The examiner noted miliary noise exposure from heavy equipment and the Veteran’s occupational history as a mechanic and fire-fighter for many years. As for tinnitus, the examiner noted a reported onset around 1994. He stated that hearing loss and tinnitus can occur together or separately. Nonetheless, he expressed a negative medical opinion for tinnitus since it was not found in STRs. In the November 2014 notice of disagreement (NOD), the Veteran reported that he had military acoustic trauma from heavy construction equipment and continuous artillery fire without any hearing protection. During the October 2018 Board hearing, the Veteran asserted his hearing loss and tinnitus started with military acoustic trauma during combat service in the Republic of Vietnam. Turning to review of the evidence, the Veteran contends service connection is warranted for bilateral hearing loss and tinnitus. He generally asserts that his bilateral hearing loss and tinnitus are an acoustic injury incurred during combat service. Hearing loss and tinnitus are readily observable, and the Veteran is competent to report such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Notably, STRs do not include an audiogram to confirm normal hearing at separation or a medical history report concerning tinnitus. Given the Veteran’s history of combat service, particular weight must be given to his lay reports. Reeves, 682 F.3d at 999. There is no positive medical opinion for either claim. However, the fact that the Veteran’s combat reports establish acoustic trauma, do not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred these disabilities while in service. Id. The evidence weighing against the claim is the October 2014 VA medical opinion. The VA examiner did not elicit the history of hearing loss from the Veteran. He primarily relies on an absence of documentation in STRs to conclude that hearing loss and tinnitus were not present in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Notably, the January 1970 separation evaluation does not include an audiogram, nor is there an accompanying Report of Medical History. The VA examiner’s assumption of normal hearing at separation is not confirmed by STRs. Moreover, the lack of documentation in the STRs is particularly flawed as a basis for the negative opinion because of the Veteran’s combat status. The reason for the combat rules is Congress’s concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Furthermore, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Given these limitations, the Board does not find the October 2014 VA medical opinions persuasive evidence weighing against a nexus for either claim. Id.; see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). For the foregoing reasons, the Board finds that the nexus evidence for these claims are in a state of relative equipoise. Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim); Reeves, 682 F.3d at 999. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel