Citation Nr: 18155828 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-35 109A DATE: December 6, 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 Veteran’s bilateral hearing loss is presumed to have occurred while on active duty and has been continuous since service. 2. The Veteran’s tinnitus is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.304(d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.304(d), 3.307, 3.309(a), 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. In March 2018, the Veteran testified at a Travel Board hearing before the undersigned, and a transcript is of record. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As to claims made by combat veterans, VA 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 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. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The combat presumption must be applied to two questions: (1) whether the claimed in-service injurious event occurred and (2) whether the claimed disability itself occurred while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In other words, the combat presumption relieves the veteran of having to establish that the injurious event suffered while in service led to disability following service, thereby permitting the veteran to have to show only that the injury or disease incurred in service was a chronic condition that persisted in the years following service. Id. at 999–1000. For certain enumerated chronic diseases, such as other organic diseases of the nervous system, which include sensorineural hearing loss and tinnitus, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater”; or 2) “when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater”; or 3) “when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. “Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158–60 (1993) (setting out the requirements for establishing service connection for hearing loss). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are the result of in-service hazardous noise exposure and acoustic trauma that occurred while serving as a cannoneer in Vietnam. The Board concludes that while the Veteran’s bilateral hearing loss and tinnitus were not diagnosed during service and may not have manifested to a compensable degree within the applicable presumptive period, based upon the combat presumption, they are presumed to be chronic diseases incurred in service, and when reasonable doubt is resolved in the Veteran’s favor, there has been continuity of the same symptomatology since service. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.304(d), 3.307, 3.309(a), 3.385; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Fountain v. McDonald, 27 Vet. App. 258 (2015). In August 2013, the Veteran was afforded a VA examination for hearing loss and tinnitus. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 15 15 15 LEFT 15 15 20 15 20 The examiner indicated that the puretone threshold results were valid for rating purposes. The speech recognition scores, which were indicated as appropriate for the Veteran, were 94 percent in the right ear and 98 percent in the left ear. For the right ear, the examiner diagnosed sensorineural hearing loss in the frequency range of 500 to 4000 Hz. For the left ear, the examiner diagnosed sensorineural hearing loss in the frequency range of 6000 Hz or higher. The Veteran reported that he had had ringing in his ears since the military, but he did not know what it was so he did not say anything about it. He stated that it was in both ears all the time. The examiner opined that the Veteran had been diagnosed with clinical hearing loss and 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. In August 2015, the Veteran underwent a private audiology examination, during which the puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 65 70 55 45 LEFT 55 50 60 60 65 The Board finds that the Veteran has bilateral hearing loss for VA purposes and tinnitus, and accordingly, the first Holton element, current disability, is met. The Veteran’s service treatment records contain induction and separation examination audiograms, which were identical and showed normal hearing. The records are silent for symptoms, complaints, diagnosis, or treatment for hearing loss or tinnitus, and the Veteran does not contend otherwise. The Veteran’s military personnel records show that he served in Vietnam from July 1969 to July 1970. They show that his military occupational specialty (MOS) was 13A10, Cannoneer. Hazardous noise exposure for cannoneers is highly probable. See Duty MOS Noise Exposure Listing. His DD Form 214 shows that he received the Vietnam Campaign Medal with 60 Device Marksman (M-16) as well as Sharpshooter (M-14). During his March 2018 Board hearing, the Veteran testified that while in service he was in the artillery and that he sat on the tail of a gun. It was noted during the August 2013 VA examination that the Veteran was a right-handed shooter. In the September 2013 rating decision on appeal, the Veteran was granted service connection for posttraumatic stress disorder (PTSD). In his statement in support of his claim, the Veteran stated that a few months after arriving in Vietnam, he was in a convoy, which was under small arms fire, when one of the trucks hit a mine. He stated that they were hit with rockets and mortars. He related a different incident during which they were under sniper attack. The Veteran provided a photo of himself firing his rifle during a sniper attack. He stated that the photos he provided were a small example of what was constantly going on around them. In a March 2014 letter, the Veteran stated that while on active duty in Vietnam he actively and continuously participated in combat operations that exposed him to high decibels of noise, and hearing protection was not available. He stated that his primary duty was that of a gunner operating a 155 Hollister, and they were engaged in fire missions on a daily basis. He stated that often four of these pieces would be fired at the same time to create large explosions. He stated that he also used smaller arms such as 50 caliber machine guns, M60 machine guns, M16 rifles, M79 grenade launders, M81 mortars, hand grenades, and 45 caliber pistols. The Veteran stated that often they were fired upon and mortared by the enemy at short range, and often they used loud explosive illuminations to expose the enemy at night. The Veteran stated that his hearing problems began with the exposure to the high decibels of firepower and frequent explosions. He stated that he expected it to diminish with time but instead he has had constant ringing in his ears, earaches, and blending of certain sounds that have never ceased. The Veteran included photographs of himself while firing the 155 Hollister during a fire mission and of shooting an M60 and with hand grenades. The Board notes that the photo of the Veteran firing the Hollister also depicts that he is covering his left ear with his right hand while firing with his left hand, and it depicts two other soldiers plugging their ears with their fingers. The photo of the Veteran shooting the M60 depicts that his right ear is fully exposed and located just above the butt of the rifle. The Veteran also presented a photograph of a mine explosion in Vietnam that he took while driving down the highway. Additionally, he presented photographs of soldiers sweeping for land mines. In an August 2015 letter, the Veteran stated that he served as a gunner operating a 155 Hollister during active duty and had “been suffering with hearing problems since.” He stated that he got frequent headaches and had trouble distinguishing mixed noises. He stated that he heard some tones but had trouble understanding some sounds. The Board finds that the Veteran’s MOS and description of combat activities are consistent with in-service hazardous noise exposure, acoustic trauma, and combat. See 38 C.F.R. § 3.304(d). There is no evidence to the contrary. Accordingly, applying the combat presumption pursuant to Reeves, the Board finds that during active duty the Veteran was exposed to hazardous noise and suffered an acoustic trauma. It is presumed, therefore, that he sustained permanent hearing loss and tinnitus, which are chronic diseases pursuant to 38 C.F.R. § 3.309(a). Accordingly, the Board finds that the second Holton element, in-service incurrence or aggravation of a disease or injury, is met. As explained in Reeves, the application of the combat presumption relieves the Veteran of having “to establish that the acoustic trauma he suffered while in the military led to hearing loss following his service,” thereby permitting him to have to show only “that the hearing disability he incurred in service was a chronic condition that persisted in the years following his active duty.” Reeves v. Shinseki, 682 F.3d 988, 999–1000 (Fed. Cir. 2012). In other words, the third Holton element, medical nexus, is met through evidence establishing continuous symptomatology of a chronic disease that is presumed to have begun during service. As noted above, the Veteran has stated that since service he has had hearing problems manifested as ringing in the ears, trouble distinguishing mixed noises, earaches, and headaches. During his March 2018 Board hearing, the Veteran testified that he noticed ringing in his ears when he came back from Vietnam. He stated that he did not mention the tinnitus on his separation examination because he did not know what it was and thought that it would go away, which it never did. He stated that the ringing has remained constant, getting louder in recent years, with louder noises drowning it out. He stated that in the quiet, he constantly hears it. He reported having dizziness with standing up or moving quickly, which he has had for many years. The Veteran’s wife testified that they met in 1986 and that the Veteran has always had hearing problems. The Veteran stated that hearing sound was not his true problem, rather it was the inability to understand speech. He stated that, during the August 2013 VA examination, he was playing with the buzzer to indicate that he had heard a tone because he could not tell, so he was guessing. He estimated that his hearing was the same as during the examination. The Veteran testified that after service he worked for a grocery distributor, which did not expose him to noise. He and his wife stated that their hobbies were fishing and hiking; they did not use guns. It was noted during the August 2013 VA examination that prior to service the Veteran was in school, and after service, he did store management, doing mostly computer work, for 25 years. In the March 2018 cover letter to the August 2015 private audiology examination report, M.J.K. stated that the Veteran reported a history of severe tinnitus, difficulty understanding words in conversations clearly, difficulty hearing in meetings, hearing from a distance, hearing in a crowd or in places with background noise, using a telephone, and listening to the television. It was noted that the Veteran reported the onset of tinnitus as being in service and getting progressively worse. It was advised that the Veteran was a definite candidate for hearing aids with tinnitus masker. It was opined that, after complete hearing test and responses from in-take health questionnaire, the Veteran’s hearing loss and tinnitus began while the Veteran was on active duty. As noted above, the Veteran was afforded a VA examination in August 2013, during which the examiner indicated “no” that his hearing loss was at least as likely as not caused by or a result of an event in military service. The examiner did not provide a stated rationale but cited to the Veteran’s service treatment records showing normal audiograms. Also, as noted above, the examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom of his bilateral hearing loss. The Board finds that, as occurred in Reeves, this case highlights the importance of the combat presumption to veteran’s claims, especially in cases of hearing loss and tinnitus. Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The VA examiner’s opinion hinged on the premise that the Veteran’s in-service audiograms were normal without applying the legal presumption of in-service injury required under the combat presumption. In Hensley v. Brown, 5 Vet. App. 155, 159 (1993), and Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), it was found that normal hearing tests during service do not foreclose the possibility of a causal link between post-service hearing loss and an in-service injury. Based upon this Veteran’s corroborated service history and in-service acoustic trauma, it cannot be said that the Veteran did not have hearing loss before his claim for compensation based upon audiograms in 1969 and 1971. Considering the combat presumption in this case, the Board finds that the Veteran is competent and credible to report experiencing symptoms of reduced hearing acuity and ringing in the ears during and since service. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses). Lay evidence is credible when it is internally consistent and consistent with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see, e.g., Curry v. Brown, 7 Vet. App. 59, 68 (1994). Here, the Veteran has reported having ringing in his ears while in service and having difficulty understanding speech and distinguishing sounds since service. His wife testified that the Veteran has had problems with hearing acuity since they met in 1986. Additionally, there is no evidence of record showing post-service noise exposure or any other explanation for the Veteran’s loss of hearing acuity. The Board finds the Veteran’s lay evidence highly probative and that it establishes continuity since service of symptomatology of the chronic diseases of bilateral hearing loss and tinnitus. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that the third Holton element, medical nexus, is met through evidence of continuous symptomatology of a chronic disease, and service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.304(d), 3.307, 3.309(a), 3.385, 4.87, Diagnostic Code 6260; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Fountain v. McDonald, 27 Vet. App. 258 (2015). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney