Citation Nr: 1806570 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-09 034 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the RO in Roanoke, Virginia. In October 2016, the Veteran testified at a Board videoconference hearing at the RO in Roanoke, Virginia, before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma (loud noise) during service. 2. Symptoms of bilateral hearing loss have been continuous since service separation. 3. The Veteran has a current disability of bilateral hearing loss. 4. Symptoms of tinnitus have been continuous since service separation. 5. The Veteran currently has tinnitus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d), 3.307, 3.309, 3.326, 3.385 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As the Board is granting service connection for bilateral hearing loss and tinnitus, the issues are substantiated and there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection Legal Authority Service connection may be granted for disability arising 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 be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's currently diagnosed sensorineural hearing loss (SNHL) and tinnitus are "chronic diseases" under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, Vet. App. 13-0540 (February 9, 2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). For these reasons, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). As the Board is granting presumptive service connection for bilateral hearing loss and tinnitus based on continuity of symptomatology since service (adjudicated below) under 38 C.F.R. § 3.303(b), the theories of direct service connection (38 C.F.R. § 3.303(d)) and presumptive service connection based on "chronic" symptoms in service (also 38 C.F.R. § 3.303(b)) or for hearing loss manifesting to a compensable degree within one year of service (38 C.F.R. §§ 3.307, 3.309) pursuant to the same benefit are rendered moot, and there remain no questions of law or fact as to the fully granted service connection issues; therefore, the direct service connection and presumptive service connection based on "chronic" symptoms in service theories or to 10 percent within one year of service will not be further discussed. See 38 U.S.C. § 7104 (2012) (stating that the Board decides only actual questions of law or fact in an actual case). For VA purposes, 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 (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Bilateral Hearing Loss The Veteran essentially contends that the current bilateral hearing loss developed due to in-service exposure to acoustic trauma. Specifically, at the October 2016 Board hearing, the Veteran testified that symptoms of hearing loss began during service. The Veteran also testified to being exposed to engine noise, gunfire, and mortars. See October 2016 Board hearing transcript. First, the Board finds that the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes. At the March 2013 VA examination, audiometric testing showed hearing loss disability in both ears as defined by VA regulations. See 38 C.F.R. § 3.385. The Board also finds the Veteran was exposed to loud noise (acoustic trauma) while in service, including during combat. The DD Form 214 shows a Vietnam Service Medal, as well as a Sharpshooter Bade. The Veteran has also reported various loud noise exposures during service, including during combat, namely mortar explosions. See October 2016 Board hearing transcript. As such, the Board finds that the Veteran had combat service; therefore, the in-service injury presumption afforded combat veterans under 38 C.F.R. § 1154(b) and 38 C.F.R. § 3.304(f)(2) is applicable in this case to demonstrate acoustic trauma during service. For these reasons, the Board finds that the Veteran was exposed to acoustic trauma during service. The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required to meet the requirements for service connection for hearing loss under any theory of service connection, including direct service connection. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, at 159 (holding that service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that hearing was diminished during service and continued to worsen since service separation. See October 2016 Board hearing transcript. Service treatment records do not contain any complaints, symptoms, diagnoses, or treatment attributed to hearing loss. The absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Throughout the course of this appeal, the Veteran has consistently contended that hearing loss began during service and has continued to worsen since service separation. See October 2016 Board hearing transcript; see also February 2014 statement. The Board finds that the Veteran has provided credible statements and testimony as well as lay histories that hearing loss symptoms have been continuous since service. Resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of bilateral hearing loss were continuous since service separation to meet the criteria for presumptive service connection under 38 C.F.R. § 3.303(b). The Board also finds that the Veteran has made credible statements that bilateral hearing loss symptoms began in active service and have been continuous since service. The Veteran's assertions of the onset of bilateral hearing loss during service and his reports that he has had bilateral ear hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current diagnoses, are sufficient to place in equipoise the question of whether the current bilateral hearing loss was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of bilateral hearing loss, presumptive service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The grant of presumptive service connection for hearing loss renders moot other theories of service connection. Service Connection for Tinnitus Throughout the course of this appeal, the Veteran has consistently contended that tinnitus began during service and continued to worsen since service separation. See October 2016 Board hearing transcript. As found above, the Veteran experienced in-service acoustic trauma. The evidence of record, including the March 2013 VA examination report and the Veteran's lay testimony, demonstrates that the Veteran currently has tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The evidence of record demonstrates in-service acoustic trauma and the Veteran reported noticing tinnitus during service that continued since separation from service. At the October 2016 Board hearing, the Veteran testified that symptoms of tinnitus, described as constant ringing, began during service. The Veteran also testified that tinnitus began in service due to exposure to loud noise, to include mortars and artillery fire. The Veteran has asserted, at the October 2016 Board hearing and elsewhere, that tinnitus originated during active service and has continued to the present. The Veteran's statements are competent, credible, and probative. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on evidence of continuous post-service symptoms of tinnitus, presumptive service connection for tinnitus is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the criteria for presumptive service connection for tinnitus based on continuous post-service symptoms (38 C.F.R. § 3.303(b)) are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C. § 7104. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs