Citation Nr: 1815495 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-24 927A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1968 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2018, the Veteran testified before the undersigned Chief Veterans Law Judge at a Travel Board hearing. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran's tinnitus had its onset during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a right to compensation for a present disability, a Veteran must show: (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 during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA will consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to a determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that his current tinnitus is related to his active service. Specifically, he maintains that he was exposed to loud noises from the operation of diesel vehicles, forklifts, and Caterpillar D-9 bulldozers in service. The Veteran's Certificate of Release of Discharge from Active Service (Form DD-214N) shows that his naval service occupation was that of an excavator. Moreover, in an October 2001 response to a VA request for information through the Personnel Information Exchange System (PIES), the National Personnel Records Center (NPRC) provided that the Veteran had service in Mobile Construction Unit BN 53 in the Republic of Vietnam from March 1969 to November 4, 1969. The Board finds that the Veteran's statements are both competent and credible. In light of the Veteran's duty as an excavator who served in a clearly identified mobile construction unit, his reported noise exposure is consistent with the circumstances of his active naval service. At the January 2018 Travel Board hearing, the Veteran testified that his current tinnitus began during the "same time frame" as the onset of hearing loss. He identified this period as when "he was just coming back from Vietnam." See January 2018 transcript, p.6. The Board also notes that the Veteran reported that he had contemporaneous recurrent tinnitus at a June 2012 VA audiological examination that had its onset "sometime" during active duty-the ambit of which would include the end of active service or when "he was just coming back from Vietnam." The Veteran is competent to report a current diagnostic impression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Furthermore, the Veteran is competent to report that his symptoms of tinnitus have continued since his service, and the Board has not basis upon which to question or doubt the credibility of his lay contentions. At a minimum, the Board finds that the evidence of record is in relative equipoise as to the onset of the Veteran's tinnitus. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's tinnitus is linked to service. Accordingly, service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. (CONTINUED ON NEXT PAGE) REMAND As noted above, the Veteran was afforded a VA audiological examination in June 2012 to address the nature and severity of bilateral hearing loss as well as its etiology. The VA audiologist was asked to render an opinion as to whether it was at least as likely as not that the Veteran's bilateral hearing loss is due to in-service noise exposure. The VA audiologist opined that it is not at least as likely as not that the Veteran's bilateral loss was caused by or the result of an event in service. However, the audiologist opined that review of the Veteran's service treatment records (STRs) reveal that the Veteran's hearing acuity at the time of his 1970 separation examination had changed significantly from his hearing acuity at the time of his induction examination. Despite significant change, hearing acuity was within normal thresholds at both induction and separation. As to the etiology of the Veteran's current bilateral hearing loss, the audiologist noted that it is more likely due to effects of presbycusis and/or civilian noise exposure. Since the time of the VA audiological examination, the Veteran submitted two articles in January 2018, which he contends support his contention that service connection for hearing loss is warranted based on the theory of delayed onset. Given the foregoing, the Board finds that a new VA examination and opinion are warranted. Accordingly, the case is REMANDED for the following action: 1. The AOJ should forward the Veteran's claim to an otolaryngologist, if possible, concerning the likelihood that the Veteran's hearing loss is related or attributable to his active duty service, to specifically include his reports of noise exposure during service. The examiner must be provided a copy of this REMAND. The examiner should opine as to the following: Is it "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood) that the Veteran's bilateral hearing loss had its onset during service or is related to any incident of service. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should also be noted that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385 ) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Regarding the bases for the opinions, please comment on the likelihood that the loud noises experienced by the Veteran, resulted in damage to auditory hair cells even though findings may or may not suggest a recovered temporary threshold shift in service. If you find auditory hair cell damage to be a likely result of the military noise exposure, please comment on the likelihood that such damaged hair cells would result in a greater permanent hearing loss than otherwise would be manifest. As the previous VA examiner did not, the Board would appreciate the otolaryngologist to specifically comment on the impact, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the following: "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M.C. Liberman (2006). J Neurosci. 2006 Feb 15; 26(7): 2115-2123. Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11; 29(45): 14077-85. Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. Furman AC, Kujawa SG, Libermann MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol. 110, 577-586. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 2. After completion of the above review of the expanded record, re-adjudicate the Veteran's claim for service connection for bilateral hearing loss. If any determination remains adverse to the Veteran, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs