Citation Nr: 18157686 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-51 959 DATE: December 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is likely related to active military service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran currently has tinnitus that is the result of noise exposure during military service. CONCLUSIONS OF LAW 1. The criteria for service connection are met for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection are met for tinnitus. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 to March 1971, and from September 1980 to July 1983. During his periods of service, the Veteran earned the Purple Heart, Bronze Star Medal, Distinguished Flying Cross with one Oak Leaf Cluster, Army Commendation Medal with V-Device with two Oak Leaf Clusters, National Defense Service Medal, Army Aviator Badge, Republic of Vietnam Campaign Medal, Good Conduct Medal, Air Medal (Numeral-43), Vietnamese Gallantry Cross with Palm, Army Service Ribbon, Overseas Service Ribbon, and Vietnam Service Medal with four Bronze Stars. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). For the purposes of applying the laws administered by VA, 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2017). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Bilateral Hearing Loss With respect to the first element of service connection, a current diagnosis, the Veteran underwent a VA hearing loss examination in June 2016. The examiner diagnosed bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385 (2017). Thus, the current disability criterion for service connection is met for bilateral hearing loss. See Shedden, supra. Next, the Board must consider whether the Veteran sustained a disease or injury in service. The Veteran has reported that he was exposed to noise during service as a helicopter pilot, as well as to explosions and blasts as a Blackhorse Trooper with the 11th Armored Cavalry in Vietnam. He reported that he was constantly exposed to noise from helicopters and blasts from tanks, howitzers, and enemy incoming rockets and mortars. The Veteran’s DD-214 confirms that his military occupational specialty (MOS) was Utility/Observation Helicopter Pilot. The Board finds that the Veteran is competent to report exposure to loud noise in service, and that such assertion is credible because it is consistent with the circumstances of service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). As such, in-service noise exposure can be conceded, and the second element of service-connection is met for both bilateral hearing loss. See Shedden, supra. The remaining question is whether there is a medical nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss. See Shedden, supra. A private audiology examination, undertaken on referral from the VA, was conducted in October 2013. The Veteran reported noise exposure to helicopters for many years. He further reported experiencing hearing sensitivity. The audiologist diagnosed mild sensorineural hearing loss bilaterally. Speech recognition scores that complied with the Maryland CNC test were not reported. An opinion was submitted by Dr. H. R., the Veteran’s primary care physician at the St. Mary’s VA clinic, in February 2014. The examiner indicted that hearing loss was demonstrated on audiogram, as well as tinnitus. The examiner opined that it was more likely than not that the Veteran’s hearing loss was related to his military service, as evidenced by the Veteran flying helicopters and being around the flightline during service in Cambodia and Vietnam. The Veteran appeared for a VA hearing loss examination in April 2014. The examiner was unable to test the Veteran’s puretone thresholds due to poor reliability. The examiner indicated that despite repeated attempts and reinstruction, the test results were not reliable and were not suitable for rating purposes, as they were strongly suggestive of a non-organic hearing loss. Speech recognition scores that complied with the Maryland CNC test were also not reported, as the examiner indicated that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, or inconsistent word recognition scores that made the combined use of puretone average and word recognition scores inappropriate. The examiner diagnosed normal hearing bilaterally. Noting that the results were unreliable and unsuitable for rating purposes, the examiner opined that it was less likely as not that the Veteran had any hearing loss that was caused by or a result of active duty noise exposure, as the Veteran’s service treatment records showed hearing within normal limits on military audiograms; thus, there was no objective evidence of onset of hearing loss during active duty. In support of his opinion, the examiner cited to a 2006 Institute of Medicine study that found if documentation of the existence of hearing loss at discharge from the military was missing, it was nearly impossible to determine whether hearing loss detected by audiometric testing later in life was the result of noise exposure during prior military service. The Veteran most recently appeared for a VA hearing loss examination in June 2016. The examiner diagnosed bilateral hearing loss for VA purposes. The examiner opined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or the result of service, as the Veteran’s hearing thresholds at the time of entrance and separation were within normal limits. The examiner reasoned that the American College of Occupational Medicine Noise and Hearing Conservation Committee has determined that “a noise induced hearing loss will not progress once it is stopped.” Thus, the examiner opined that it was less likely than not that the Veteran’s current bilateral hearing loss was caused by or the result of military noise exposure or acoustic trauma With regard to the final element of the Shedden analysis, the nexus element, the Board finds that the evidence is at least in equipoise as to whether this element is satisfied. In pertinent part, the Veteran’s primary care physician provided a positive nexus opinion in February 2014. In rendering his opinion, the physician reviewed the Veteran’s service treatment records and post-service treatment records, as well as considered the Veteran’s complaints of in-service noise exposure. The Board acknowledges the April 2014 and June 2016 negative VA opinions. However, the examiners based the negative finding on the Veteran having a normal audiogram at separation. The Board notes that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, where there is no evidence of hearing disability until many years after separation from service, “[i]f evidence should sufficiently demonstrate a medical relationship between the Veterans’ in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As such, the Board finds that the April 2014 and June 2016 opinions are inadequate and cannot serve as the basis of a denial of service connection. In light of the foregoing, as well as the Veteran’s credible lay statements of exposure to acoustic trauma during service, his competent descriptions of impaired hearing since service, a finding of bilateral hearing loss disability under 38 C.F.R. § 3.385 during the pendency of the claim, and the positive nexus opinion submitted in February 2014 by his primary care physician, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to active service. Accordingly, the benefit-of-the-doubt will be conferred in the Veteran’s favor and the claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus With regard to a present disability, the Veteran’s June 2016 VA examination notes a diagnosis of tinnitus. Thus, the first elements of the Shedden and Wallin analysis have been met. With regard to direct service-connection claim, as indicated above, in-service noise exposure has been conceded. With regard to secondary service connection, by this decision, the Veteran has been service-connected for bilateral hearing loss. Thus, the second elements of the Shedden and Wallin analysis have been met. The remaining question is whether there is a medical nexus between the Veteran’s current tinnitus and either his active service or his service-connected bilateral hearing loss. On this matter, the evidence preponderates in favor of a finding of nexus. The Veteran appeared for a VA examination in April 2014. The Veteran reported an onset of tinnitus in 1969 or 1970. As there was no objective evidence of onset of tinnitus during active duty, the examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure, as the service treatment records were silent for tinnitus. In support of his opinion, the examiner cited to a 2006 Institute of Medicine study that found if documentation of the existence of tinnitus at discharge from the military was missing, it was nearly impossible to determine whether tinnitus detected by audiometric testing later in life was the result of noise exposure during prior military service. The Veteran most recently appeared for a VA examination in June 2016. The examiner diagnosed recurrent tinnitus. The Veteran reported that his tinnitus began in 1968, but he did not report it to his superiors because he did not want to be removed from flight status. The examiner indicated that the Veteran had a diagnosis of clinical hearing loss and opined 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. With regard to the nexus element under Shedden, the Board finds that the evidence is at least in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran has reported that he currently experiences tinnitus. He has reported that he began experiencing tinnitus in service and that it continued since that time. The Veteran is competent to describe what he experienced in service. 38 C.F.R. § 3.159(a)(2). The Board also finds the Veteran’s statements with respect to the onset and continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the foregoing, the benefit-of-the-doubt will be conferred in the Veteran’s favor and the claim for service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). As the Board is granting service connection for tinnitus on a continuity of symptomatology theory of entitlement, there is no need to discuss entitlement to service connection on any other basis, 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 (2012). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel