Citation Nr: 19129149 Decision Date: 04/15/19 Archive Date: 04/15/19 DOCKET NO. 16-38 915 DATE: April 15, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for residuals of a left eye injury is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran currently has a bilateral hearing loss disability as defined by VA regulation that is related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1971 to May 1973. He received the Combat Action Ribbon, the Vietnam Service Medal, and the Vietnam Campaign Medal. The Veteran requested a videoconference hearing on his VA Form 9, and a hearing was scheduled for March 2019. The Veteran did not attend the hearing, nor did he provide good cause for his absence. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d). Entitlement to service connection for bilateral hearing loss is granted. The Veteran maintains that he has bilateral hearing loss that should be service-connected. He avers that his currently diagnosed bilateral hearing loss is the result of the same noise exposure that resulted in the grant of service connection for tinnitus; namely, that he worked in ship engine rooms below deck and was exposed to the sound of machinery every day while serving on the vessel during the Vietnam War. Generally, to establish service connection, there must be: (1) competent and credible evidence confirming the Veteran has manifested the claimed disability at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385, as shown on July 2013 VA examination. Next, the Board finds that the Veteran was likely exposed to loud noise during his active duty service due to the circumstances as an engineman during his combat service in the Republic of Vietnam. At issue is whether there is a nexus between the Veteran’s current bilateral hearing loss disability and his in-service noise exposure. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” Fountain v. McDonald, 27 Vet. App. 258, 266 (2015) (quoting VA Training Letter 10-02). More specifically, in Fountain, the Court referenced medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain and was commonly caused by chronic exposure to excessive noise, in addition to age related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused his service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current bilateral sensorineural hearing loss. Based upon both medical and legal authority, the Board finds that the in service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current bilateral sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258. Notwithstanding the above, the July 2013 VA examiner could not provide an etiological opinion on this issue without resorting to speculation. The Board could remand this issue for an additional opinion. However, this is unnecessary as the probative evidence of record reveals a currently diagnosed hearing loss disability for VA purposes, in-service noise exposure, and sustained nerve damage that caused his service-connected tinnitus, and by necessary logical inference, caused the current bilateral sensorineural hearing loss. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, based on the totality of the evidence, and with application of the benefit of the doubt rule of 38 U.S.C. § 5107 (b), the Board finds that the evidence of record provides an adequate basis on which to grant service connection for bilateral hearing loss. REASONS FOR REMAND The issues of entitlement to service connection for residuals of a head injury and a left eye injury are remanded. The Veteran maintains that he hit his head, injuring it and his left eye during his active duty combat service in 1971. The Board finds that the Veteran is competent to testify concerning or to provide evidence of the events in service, particularly those events which occurred during his combat service in Vietnam. With respect to combat Veterans especially, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, and hardships of such service. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Thus, despite an absence of service treatment records delineating an injury to the Veteran’s head or left eye, a remand is required to afford the Veteran a VA examination and any examiner must consider the Veteran’s statements of in-service incurrence when rendering an etiological opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of traumatic brain injury. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. If the examiner does not believe that the Veteran’s claimed head injury are related or attributable to his military service, then this determination must be based on consideration of the objective medical evidence of record and the lay evidence of record, notably, the Veteran’s lay assertions and any supporting lay witness testimony. That is to say, the examiner cannot rely solely on the absence of documented in-service medical evidence as the entire basis for the opinion without a thorough explanation. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left eye disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. If, and only if, the Veteran’s head injury is found to be service-connected, the examiner is asked to determine whether any diagnosed left eye injury is proximately due to the Veteran’s service-connected head injury and/or aggravated beyond its natural progression by his service-connected head disability. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush