Citation Nr: 20007108 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 19-13 291 DATE: January 29, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Service connection for a respiratory disease, to include chronic obstructive pulmonary disease and acute respiratory disease, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1956 to July 1963 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in July 2019. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). The Veteran contends that his bilateral hearing loss and tinnitus are related to his in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Bilateral Hearing Loss 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 Board finds that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. See June 2018 VA examination showing a right ear auditory threshold of 40 dB at 1000 Hertz and a left ear auditory threshold of 100 dB at 3000 Hertz. See 38 C.F.R. § 3.385. The Board also finds that the Veteran was exposed to acoustic trauma during active service. The Veteran’s military occupational specialty (MOS) as noted on his DD-214 was motor transport operator (truckmaster). At the July 2019 Board hearing, the Veteran competently and credibly testified that while he was in the Army, he was responsible for firing 30 caliber machine guns, 50 caliber machine guns, 57 recoilless rifles, 106 recoilless rifle, and 81 mm mortar. Layno v. Brown, 6 Vet. App. 465 (1994). Regarding the third element, nexus, the evidence consists of a June 2018 VA examination and the Veteran’s lay statements. The June 2018 VA examiner opined that the Veteran’s hearing loss is less likely than not caused by or a result of an event in military service. The examiner stated that the Veteran served in the Army from June 1956 to April 1962 as a motor transport operator (truckmaster), which is an MOS with a moderate probability of exposure to loud noises and the Veteran reported that he was in the infantry and was exposed to loud noises from machine guns, rocket launchers, recoilless rifles, tanks, diesel engines and motor pool; however a review of the Veteran’s service treatment records (STRs) show that he passed the whisper voice test at his entrance examination and had normal hearing at his separation examination. The Board does not afford this examination any probative weight as it based the finding on a whisper voice test at entrance and the Veteran’s normal hearing at separation. At the July 2019 Board hearing, the Veteran competently and credibly testified that he first noticed trouble with hearing while in the military. He testified that ever since he was in the military, his hearing has been declining. The Veteran is competent to describe observable symptoms of hearing loss and relate when such symptoms began. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran’s STRs show that his hearing worsened during service. Resolving reasonable doubt in the Veteran’s favor, the Board finds the criteria for service connection for bilateral hearing loss have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tinnitus The Board concludes that the Veteran has a current tinnitus disability that is related to noise exposure in service. The Board finds that the first two elements have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He has competently and credibly reported current tinnitus symptoms. See June 2018 VA Examination. Additionally, the Board finds that the Veteran was exposed to acoustic trauma during active service based on his verified MOS (as noted above regarding the bilateral hearing loss claim). Regarding the third element, nexus, the evidence consists of a June 2018 VA examination and the Veteran’s lay statements. The June 2018 VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner stated that due to an unknown date of onset and normal hearing at exit from service, there is not enough evidence to support tinnitus due to military noise exposure. At the July 2019 Board hearing, the Veteran testified that he first noticed his tinnitus while he was in the military and has had ringing in his ears since then. The Board finds the Veteran’s statements both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994). As the Veteran has competently stated that he experienced tinnitus in service and since service, and tinnitus is a purely subjective disability, the Board finds the evidence is at least in equipoise as to whether the current tinnitus arose in service. Resolving reasonable doubt in the Veteran’s favor, service connection for tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service connection for a respiratory disease The Veteran contends that he has a current respiratory disability that is related to his in-service treatment for an acute respiratory disease. The evidence shows that the Veteran has a diagnosis of chronic obstructive pulmonary disease; therefore, the issue, as reflected on the title page of this decision was broadened to include service connection for a respiratory disease, to include chronic obstructive pulmonary disease (COPD) and acute respiratory disease. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). In July 2019, the Veteran submitted medical evidence showing that he has a current respiratory disability. Additionally, the Veteran’s STRs show that the Veteran was treated for an acute respiratory disease while in service. VA is obligated to provide an examination and/or opinion where the record contains competent evidence that the claimant has a current disability, the record indicates that a disability or signs or symptoms of disability may be associated with active service or service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a VA examination is necessary to determine if there is a nexus between the onset of the Veteran’s condition and service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, as the Veteran’s claim is being remanded, any outstanding VA or private medical treatment records should be obtained and associated with the record. The matter is REMANDED for the following actions: 1. Obtain any outstanding private and/or VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disease. The claims file should be made available to the examiner. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed respiratory condition is related to an in-service injury, event, or disease, including the documented acute respiratory disease noted in the Veteran’s service treatment records. A complete rationale must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, Associate Counsel 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.