Citation Nr: 18160023 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-08 272 DATE: December 20, 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 in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss was incurred in his active military service. 2. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed tinnitus was incurred in his active military service. CONCLUSIONS OF LAW 1. The criteria of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116(f), 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1969. Service in the Republic of Vietnam is indicated. The Veteran is the recipient of the Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (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 in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain enumerated diseases will be service connected on a presumptive basis if they manifested to a compensable degree within one year after active duty service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). VA deems sensorineural hearing loss to be an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (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, 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. Service connection will be granted for a hearing loss disability where the evidence establishes a nexus between the current hearing loss and a disease or injury suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. Finally, in the case of any veteran who engaged in combat with the enemy in active service with a military organization of the United States during a period of war, 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. 38 U.S.C. § 1154(b). In other words, 38 U.S.C. § 1154(b) 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. In this matter, the Veteran contends that his bilateral hearing loss and tinnitus were incurred during his active military service. For the reasons set forth below, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. With respect to a current diagnosis, the April 2014 VA examiner confirmed that the Veteran has bilateral hearing impairment for VA compensation purposes. A diagnosis of tinnitus was also indicated. See the April 2014 VA examination report. With respect to in-service incurrence, the Veteran has asserted in-service noise exposure due to rocket and mortar fire/explosions during his service in the Republic of Vietnam during the Tet Offensive in 1968. He states that following that exposure, he developed tinnitus and decreased hearing acuity which have been present since that time. See, e.g., the Veteran’s statements dated March 2014 and February 2017. In this regard, the Board notes that the Veteran received the Purple Heart Medal indicating combat service. Indeed, service connection for residuals of shrapnel wound injuries has been established. See, e.g., the rating decisions dated August 1971 and November 2016. As such, 38 U.S.C. § 1154(b) is applicable. The Veteran’s statements concerning noise exposure and residual audiological symptomatology are both competent and credible; therefore, in-service acoustic trauma and in-service hearing loss and tinnitus is presumed. 38 U.S.C. § 1154(b). Thus, the crucial question in this matter is whether the current bilateral hearing loss and tinnitus are due to the in-service disease or injury, acoustic trauma and audiological symptomatology. The Veteran’s service treatment records (STRs) include in his April 1969 separation examination, which documented the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 10 LEFT 5 5 5 X 10 The Veteran’s claim of entitlement to service connection for bilateral hearing loss and tinnitus was received in October 2013. He was afforded a VA audiology examination in April 2014 at which time the examiner determined that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus were caused by or a result of his reported military noise exposure. The examiner provided the following rationale: Enlistment and discharge physicals both show normal pure tone audiometry bilaterally. No significant shift in hearing was noted from time of enlistment to time of discharge. DD-214 does show Purple Heart and Bronze Star with ‘v’ device, which indicate noise exposure. However, no significant change in hearing occurred while Veteran served in the Army. In the Institute of Medicine (IOM), National Academy of Sciences, 2006 article titled ‘Noise and Military Service-Implications for Hearing Loss and Tinnitus,’ the IOM concluded that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. IOM did not rule out that delayed onset might exist but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss there was no reasonable basis for delayed-onset hearing loss. With all things equally weighed, it is my opinion that hearing loss is not related to service as no change in hearing occurred while Veteran served in military. The April 2014 VA examiner additionally explained that, as to the diagnosed tinnitus, “[n]o complaints of tinnitus seen in STRs. Tinnitus is likely related to the current loss of hearing which is considered not due to service. Thus, tinnitus would also then be considered not due to service.” In support of his contentions, the Veteran submitted a September 2016 private audiological evaluation in which Dr. K.R. documented the Veteran’s mild sloping to severe sensorineural hearing loss bilaterally. Dr. K.R. stated, “[i]t is more than likely that [the Veteran’s] hearing loss and tinnitus are a direct result from his military service, particularly the noise exposure he experienced while working as a motion picture photographer.” In his February 2017 VA Form 9, the Veteran described experiencing bilateral hearing loss and tinnitus dating from his military service. Thus, there is conflicting medical evidence of record concerning the question of nexus between the Veteran’s current disabilities and his military service. The Board has the authority to “discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). With respect to the negative nexus opinion expressed by the April 2014 VA audiology examiner, the Board notes the examiner failed to address the Veteran’s competent and credible assertion of continuing bilateral hearing loss and tinnitus symptomatology dating from his military service. Moreover, the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of current hearing loss 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In contrast, as noted above, Dr. K.R. indicated that the Veteran’s currently diagnosed bilateral hearing loss and tinnitus are related to his military service. This opinion is supported by the competent assertions of the Veteran concerning his acoustic trauma sustained during his military service, and his continuing audiological symptoms from that time. (Continued on the next page)   Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the diagnosed bilateral hearing loss and tinnitus are the result of the Veteran’s military service. The benefit-of-the-doubt rule is therefore for application as to these issues. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C. § 5107 (2012). K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel