Citation Nr: 20006963 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-56 516 DATE: January 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for temporomandibular joint disorder (TMJ), claimed as secondary to Veteran’s service-connected Hodgkin’s disease, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss disability was incurred as a result of in-service noise exposure. 2. The Veteran experiences tinnitus that is etiologically related to his military service. 3. The Veteran’s TMJ is casually related to the Veteran’s service-connected Hodgkin’s disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385, 4.85. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385, 4.85. 3. The criteria for service connection for TMJ, as secondary to Veteran’s service-connected Hodgkin’s disease, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from November 1981 to April 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is on record. The Board recognizes that, in correspondence submitted in November 2019, the Veteran attempted to raise claims for service connection for teeth grinding, neck aches, and headaches on a secondary basis to the Veteran’s TMJ, should the Board herein grant service connection for TMJ. The Veteran is notified that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). The Veteran is also advised that teeth grinding is a symptom, not a disability, and thus does not qualify for its own claim. If the Veteran feels that he is not being appropriately compensated for his teeth grinding symptom of TMJ by his eventual rating for TMJ based on the grant herein, the proper route to receive compensation for his teeth grinding would be to appeal the rating for TMJ. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In a claim for service connection for hearing loss, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks service connection for bilateral hearing loss. The Board finds service connection is warranted. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The record reflects that the Veteran meets VA’s criteria for bilateral hearing loss. The Veteran was provided an audiology VA examination in January 2012. At this examination, the Veteran’s pure tone thresholds in his left and right ears were 40 decibels or greater in the frequencies of 3000Hz and 4000Hz. Further, the Veteran submitted results of a private audiology examination conducted in September 2019, which show that the Veteran now experiences pure tone thresholds in excess of 40 decibels in the frequencies of 3000Hz and 4000Hz. Therefore, the Veteran meets the first criteria of service connection, a current disability. The Board also finds evidence of record sufficient to support the second requirement for service connection, and in-service occurrence. While the Veteran’s service treatment records do not document any specific noise injuries, the Veteran is competent to provide lay evidence of his in-service noise exposure. In his November 2016 VA Form 9, the Veteran asserted that he was exposed to significant acoustic trauma as a helicopter repairman. In March 2019 correspondence, the Veteran explained that in addition to his noise exposure from repairing helicopters, he also participated in firearm training. At his August 2019 hearing, the Veteran stated that he only wore ear plugs on occasion during his service. Moreover, the Veteran’s in-service military occupational specialty (MOS) was that of a helicopter repairman. While his specific MOS is no longer listed in the duty noise exposure listings, the current MOS for helicopter repair lists this duty as having a high probability of hazardous noise exposure. For these reasons, the Board finds in-service exposure to hazardous noise. Regarding the final requirement of a nexus between the Veteran’s current bilateral hearing loss and his in-service noise exposure, the Board notes that there are two etiological opinions of record—one positive, supporting service connection, and one negative. The negative opinion comes from the Veteran’s January 2012 audiology VA examination. The examiner found that the Veteran’s bilateral hearing loss was less likely than not related to his military service. The Board finds the opinion adequate, as it was based on the Veteran’ prior medical history and examination, and provided a reasoned explanation connecting facts to the eventual conclusion. The positive opinion comes from the Veteran’s September 2019 private audiology examination. After reviewing the Veteran’s prior medical history and conducting an examination, the provider found that the Veteran’s current hearing loss is most likely related to his military service. The Board finds this opinion is also adequate, as it, too, is based on the Veteran’s medical history, examination, and is supported by a reasoned explanation. When evidence is in relative equipoise as to whether it supports the Veteran’s claim, the Veteran prevails. Here, the evidence is in relative equipoise as to whether there is a nexus between the Veteran’s current hearing loss and service such that the Board finds the third criteria for service connection, a nexus, is met. Accordingly, service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus. The Board finds service connection is warranted. The Board concludes that the evidence of record supports the claim of entitlement to service connection for tinnitus. The record shows noise exposure in service, a current diagnosis of tinnitus, and the only adequate medical opinion on record addressing tinnitus connects the two. While the Veteran’s January 2012 VA examiner’s opinion is adequate regarding hearing loss, it is not for tinnitus. It reads in its entirety: hearing was normal at separation and records are silent. Not only does this opinion impermissibly rely on the absence of documented hearing loss in service, it is conclusory, providing no explanation. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); and Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also finds that the Veteran’s service treatment records, which do not document tinnitus, are not dispositive of whether tinnitus had its onset during service. The Veteran’s September 2019 private audiology opinion stating that tinnitus was related to service; however, is just as adequate regarding tinnitus as it is for bilateral hearing loss as documented above. Thus, the preponderance of the evidence weighs in favor of finding service connection for tinnitus. The appeal is granted. 3. Entitlement to service connection for temporomandibular joint disorder (TMJ), claimed as secondary to Veteran’s service-connected Hodgkin’s disease, is granted. The Veteran seeks service connection for TMJ, claimed as due to the stress and anxiety of receiving the diagnosis of and eventual chemotherapy treatment for his service-connected Hodgkin’s disease. Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that service connection is warranted as the evidence shows the Veteran currently experiences TMJ that is linked to his service-connected Hodgkin’s disease. First, the record reflects that the Veteran currently experiences TMJ. The Veteran submitted a September 2019 letter from his treating dentist which contains a diagnosis of TMJ. Further, VA medical records indicate the Veteran sought treatment for TMJ at a VA facility in February 2014. Second, the Veteran is service-connected for Hodgkin’s disease. The record shows he has been service-connected for the disease since 1985. The Board notes that while the Veteran’s Hodgkin’s disease does not appear to be active, the service-connected disability need not be active for another disability to be connected to it on a secondary basis. See Wallin, 11 Vet. App. 509. Third, the September 2019 letter from the Veteran’s treating dentist contains the necessary medical nexus evidence linking the Veteran’s TMJ to his Hodgkin’s disease. The Board finds this opinion adequate and probative of such a nexus. The dentist noted a familiarity with the Veteran’s dental history and a review of the Veteran’s service treatment records. Moreover, the dentist provided a reasoned explanation for how the stress and anxiety caused by a diagnosis of and treatment for the Veteran’s Hodgkin’s disease led to the Veteran’s TMJ. Further, medical records indicate that the Veteran first experienced symptoms of TMJ in August 1985, while receiving chemotherapy treatment for his Hodgkin’s disease. As such, the Board finds that medical evidence of record establishes a link between the Veteran’s current TMJ and the Veteran’s service-connected Hodgkin’s disease. Service connection is warranted. The appeal is granted. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.