Citation Nr: 18106904 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-09 880 DATE: June 1, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether bilateral hearing loss is etiologically related to the Veteran’s combat service in Vietnam as a light weapons infantryman. 2. The evidence is at least in equipoise that his claimed tinnitus is etiologically related to the Veteran’s combat service in Vietnam as a light weapons infantryman or caused by his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of in-service exposure to hazardous noise, including due to his work as a light weapons infantryman. The Veteran is also a Purple Heart, Bronze Star Medal with “V” device, and Combat Infantryman Badge recipient from his combat service in Vietnam. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Hearing loss and tinnitus specifically, as organic diseases of the nervous system, are subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, the 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran claims he has hearing loss and tinnitus related to his military service, specifically due to his Vietnam combat experience as a light weapons infantryman. 1. Entitlement to service connection for bilateral hearing loss Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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. Pure tone threshold levels on May 2014 VA examination reflected bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Therefore, the question for the Board is whether the Veteran’s bilateral hearing loss either began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that that Veteran’s bilateral hearing loss is etiologically related to the Veteran’s active service. In a March 2014 VA Form 21-4138, Statement in Support of Claim, the Veteran argued that his exposure to loud gunfire, explosions, bombs, artillery, and helicopters caused his hearing loss. The Veteran continued, noting that the helicopter crews would have hearing protection but those being transported would not have hearing protection. On the October 2014 notice of disagreement, the Veteran asserted that his civilian employer told him upon starting work in 1969 that his hearing was bad. The Veteran argued that his civilian employer likely kept documentation of his hearing acuity because they provided annual physicals. The Board finds that the Veteran experienced an in-service injury, exposure to hazardous noise, in combat in Vietnam. The Board finds the Veteran’s reports of exposure to hazardous noise due to his MOS as a light weapons infantryman in combat in Vietnam, to be competent and credible. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). The Veteran’s service personnel and treatment records indicate that his MOS was as a light weapons infantryman and that he is a recipient of the Purple Heart, Bronze Star Medal with “V” device, and Combat Infantryman Badge. Thus, the evidence reflects that he engaged in combat with the enemy and his noise exposure descriptions are consistent with the circumstances and hardships of such service. 38 U.S.C. § 1154(b). The Veteran has asserted that he has had continuous symptoms of bilateral hearing loss since service. The Veteran’s consistent assertions that his civilian employer noted his diminished hearing in 1969, less than two years after service, are credible allegations of continuity. The Board finds the Veteran competent and credible with regard to his claim of experiencing symptoms of bilateral hearing loss in service and continuity of symptoms since service. There is evidence the Veteran had noise exposure in service and his assertion that the bilateral hearing loss began during service is consistent with the circumstances of service. At the May 2014 VA examination, the examiner opined that the Veteran’s current hearing loss was less likely than not related to his service as there was no evidence of a significant threshold shift during service. In a November 2015 Appellant’s Brief, the Veteran’s representative argued that the U.S. Court of Appeals for Veterans Claims (Court), held in Hensley v. Brown, 5 Vet .App. 155, 159 (1993), that 38 C.F.R. § 3.385 does not preclude service connection for a hearing loss when hearing was within normal limits at the time of separation. Rather, it establishes the point at which a measurable hearing loss is determined to be a disability for which service connection can be paid, provided the other requirements for service connection are met. Further, his representative argued that the Veteran cannot be precluded from establishing service connection merely on the basis of the absence of a threshold shift in service. The Veteran’s representative continued, arguing that the National Academy of Science study entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” states that “The specific noise levels that cause noise-induced hearing loss vary with the duration of the exposure, the type of noise, and the frequency content of the noise, as well as the susceptibility of the individual.” The Board acknowledges that the May 2014 VA examiner found that the Veteran’s bilateral hearing loss was less likely than not caused by noise exposure during his military service. However, the VA examiner’s rationale is inadequate as it did not consider the circumstances of the Veteran’s active service and relied solely upon the lack of a hearing threshold shift in service in developing his opinion. As the rationale is inadequate, the May 2014 VA opinion has little probative value. There are no other medical opinions of record. In sum, the Veteran has been diagnosed with bilateral hearing loss, and was exposed to hazardous noise during his combat service. Further, the Board finds the Veteran’s statements that he has been experiencing hearing loss since service to be competent and credible. Therefore, they have significant probative value. As such, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. 2. Entitlement to service connection for tinnitus The Veteran also alleges he has tinnitus due to his active duty service. Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. 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 (2002). The Veteran has provided competent and credible statements regarding currently experiencing ringing in his ears. Specifically, on May 2014 VA examination, he reported experiencing intermittent ringing in both ears for many years. Therefore, the Board finds he has a current disability of tinnitus. The Veteran contends that he has tinnitus as a result of in-service acoustic trauma. The question for the Board is whether the Veteran’s tinnitus is related to his service. The Board concludes that the Veteran has a current diagnosis of tinnitus that began during active service. As noted above, the Veteran engaged in combat with the enemy and his description of noise exposure is consistent with the circumstances and hardship of that service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). On May 2014 VA examination the Veteran reported that he had intermittent tinnitus for many years, which sometimes made it hard for him to go to sleep. The May 2014 VA examiner opined that the Veteran’s tinnitus is less likely than not related to an in-service injury, event, or disease, as there was no in-service threshold shift and he could not identify a time that the tinnitus began in service. The examiner further concluded that since he did have hearing loss, it was more likely than not related to his diagnosed hearing loss. On the October 2014 notice of disagreement, the Veteran argued that the ringing in his ears was caused by the tunnels in Cu Chi, where his infantry division was on duty to watch for the enemy at one point while he was in Vietnam. On the March 2015 VA Form 9 the Veteran also argued that he experienced tinnitus when firing his M14 during basic training on the rifle range. In the November 2015 Appellant’s Brief, the Veteran’s representative argued, in addition to that noted above, that with regard to noise-induced tinnitus, specific parameters of hazardous noise exposure have not been defined, but noise levels associated with hearing loss are also likely to be associated with tinnitus. This study also held that “The evidence is sufficient to conclude that noise doses associated with hearing loss are likely to be associated with tinnitus.” The Board acknowledges that the May 2014 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by in-service noise exposure. The Board places little weight of probative value on this aspect of the May 2014 opinion as the Veteran subsequently provided competent and credible evidence regarding the onset and continuity of tinnitus during and since service. Further, as the Veteran is now service connected for bilateral hearing loss as a result of the above decision, the VA examiner’s opinion purporting that the Veteran’s tinnitus is more likely than not related to his bilateral hearing loss is persuasive of a conclusion that tinnitus is caused by the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 3.310. Accordingly, based on the analysis above, when resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran has also asserted that he has PTSD due to his combat experiences in service. As he engaged in combat with the enemy, his claimed stressors are related to such combat, and the stressors are consistent with the circumstances and hardships of such combat service, the Veteran’s lay testimony regarding his stressors is sufficient to establish the occurrence of the in-service stressors. 38 C.F.R. § 3.304(f)(2). The Veteran underwent a VA examination in May 2014. The VA examiner declined to diagnose the Veteran with any psychiatric disorders, to include PTSD, as his noted symptomatology did not conform to the DSM criteria for PTSD. The examiner in part noted that the Veteran did not meet the DSM criterion for intrusion symptoms or marked alterations in arousal and reactivity. In support of that conclusion, she explained in part that he reported he did not have any trouble falling asleep or staying asleep and that he reported getting seven hours of sleep a night. She also noted that he reported having nightmares about Vietnam every six months and that memories of Vietnam were not upsetting to him. In his October 2014 notice of disagreement, the Veteran alleged that he wakes up in the middle of the night because of Vietnam and then must deal with the lack of sleep, which makes it difficult to function. Further, he indicated that Vietnam “goes through my mind every single day”, and that he did not seek treatment earlier because no one knew what PTSD was. In the March 2015 VA Form 9, the Veteran argued that he struggles with sleep disturbances as reflected by the fact that he was completing the Form 9 at three in the morning because he was unable to sleep. In light of the Veteran’s lay statements, it appears that the Veteran’s symptoms may have worsened since the May 2014 VA examination. As such, the Board finds that remand of this issue is warranted to obtain a VA examination and medical opinion regarding whether the Veteran has PTSD or another psychiatric condition related to his combat service. The Board also notes that the Veteran indicated in April 2014 that he had not received treatment for any mental health disability, either from the VA or private treatment providers. However, on remand, the Agency of Original Jurisdiction should contact the Veteran to determine whether or not he has since received treatment and obtain those records, if available. The matter is REMANDED for the following actions: 1. Contact the Veteran to determine whether he receives treatment, VA or private, for his claimed psychological condition, and obtain as necessary a VA Form 21-4142 for any identified providers. 2. Upon completion of 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric condition. All current psychiatric disorders should be clearly diagnosed in accordance with official diagnostic criteria of the DSM. The examiner should clearly indicate whether the criteria for PTSD have been met, and adequately explain why, providing supporting details. The examiner must opine whether any identified diagnosis is at least as likely as not related to the Veteran’s confirmed stressors relating to his combat service in Vietnam. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel