Citation Nr: 1815595 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-22 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sangster, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to June 1969. His commendations include the Combat Infantryman Badge, the Bronze Star Medal, the Purple Heart and the Silver Star. See 38 U.S.C. § 1154(b). This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the Veteran's VA treatment records show evaluation for posttraumatic stress disorder (PTSD) issues and a diagnosis of an anxiety disorder. Further, his service treatment records show that he suffered a head injury, as well as a laceration of his right shoulder and left arm, from shrapnel in February 1968. The RO should provide the Veteran with an appropriate claim form and invite him to submit a claim for service connection for a psychiatric disorder, residuals of a head injury, and/or residuals of lacerations to the right shoulder and left arm, should be believe that he has any current disabilities as a result of his military service. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his tinnitus is related to active duty. 2. Resolving all doubt in the Veteran's favor, his bilateral hearing loss is related to active duty. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria are met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran believes that his tinnitus and hearing loss are related to his active duty. Specifically, he asserts that he was exposed to acoustic trauma due to his combat experience in Vietnam. Moreover, he maintains that his tinnitus had its initial onset in service and has continued since then. He has stated that the ringing in his ears and the sounds of crickets started while he was in Vietnam. Further, he stated that his hearing loss gradually diminished over the ensuing years after service. Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including tinnitus and sensorineural hearing loss as organic diseases of the nervous system, if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service, no matter how remote, will be entitled to service connection without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent cause"). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a). If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this provision. Id.; Walker, 708 F.3d at 1338-39. The record shows that the Veteran had a VA examination in April 2012. He was shown to have bilateral hearing loss in accordance with VA standards. See 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with hearing loss and tinnitus but opined that they were less likely than not related to his active duty. The examiner conceded that the Veteran served in combat and was exposed to acoustic trauma; however, she stated that there were no complaints of tinnitus or hearing loss in the service treatment records (STRs). The examiner further noted that the Veteran reported that his tinnitus and hearing loss started 20-30 years ago, which was well after military service. She also noted that the Veteran was exposed to noise for about 20 years while working in factories as a welder. Due to these factors, she opined that the Veteran's tinnitus and hearing loss were not a result of military service. While the April 2012 VA examiner concluded that the Veteran's tinnitus was not caused by his in-service noise exposure due to the late onset of tinnitus relative to military service, this opinion was based upon the Veteran's report that his tinnitus began 20 to 30 years earlier. However, the Veteran stated in his March 2013 notice of disagreement (NOD) that he had "ringing" as well as "cricket sounds" in his ears since his combat experience in Vietnam and that these symptoms have persisted ever since. Here, it must be pointed out that tinnitus is a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). In this case, the Veteran is competent to report the symptoms of tinnitus, and the Board finds his lay statements to be credible. Thus, the Board declines to accept the medical opinion as it does not account for the Veteran's lay assertion of onset and continuity of symptomatology, and therefore lacks probative value. See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Accordingly, the April 2012 VA medical opinion is an inadequate basis upon which to base a denial of entitlement to service connection. As noted above, tinnitus is a chronic disability. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Resolving doubt in the Veteran's favor, the Board finds that his competent and credible lay statement made in March 2013 has placed the onset of his tinnitus during his military service. See 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, because a chronic disease manifested in service and the Veteran currently has that same chronic disease, service connection for tinnitus is warranted. See 38 C.F.R. § 3.303(b). With respect to hearing loss, the Veteran's commendations include the Combat Infantryman Badge, the Bronze Star Medal, the Purple Heart and the Silver Star. Thus, he is entitled to the combat presumption. When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." See 38 U.S.C. § 1154(b). The Board must consider the Veteran's combat experience in resolving the issue of service connection for hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Like this case, Reeves involved a hearing loss claim by a combat veteran. Under the analysis used in Reeves, the combat presumption of section 1154(b) applies not only to prove that the Veteran was exposed to acoustic trauma in Vietnam, but also that he incurred hearing loss during his service in Vietnam. The Veteran has stated that his hearing loss gradually diminished over the ensuing years after service. Resolving doubt in his favor, the Board construes this statement as meaning that he had hearing loss symptoms in service and that his hearing continued to diminish after service. The Board has considered the contrary opinion of the VA examiner. However, the evidence is at least evenly balanced as to whether in-service acoustic trauma caused the Veteran's bilateral hearing loss disability. With reasonable doubt resolved in his favor, the Board finds that the Veteran's hearing loss was incurred in service. See 38 U.S.C.A. §§ 1154(b), 5107(b). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs