Citation Nr: 21061404 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 14-42 583 DATE: October 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus, is remanded. FINDING OF FACT The Veteran's current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1986 to September 1989 with additional service in the Army National Guard from September 1989 to June 2007, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in April 2018 and November 2020. The Board has recharacterized and broadened his psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that his bilateral hearing loss is a result of noise exposure due to his military occupational specialty (MOS) as a Utilities Equipment Repairman for the 67th Artillery Unit for six to seven years during his military service. Specifically, he maintains that in conjunction with his MOS he spent most of his time sleeping in a trailer 50 yards away from around the clock artillery fire from tanks and that the "blows" from these tanks were so loud they could knock him off the trailer. He maintains that he performed his duties without proper hearing protection and that even with the hearing protection available, the quality and adequacy of the protection was not like today's standards. As a result, he asserts that he first began to experience a hearing loss symptomatology during service and his hearing has continued to decline since that time. See October 2017 Board Hearing Transcript at 8-9. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. § 1131. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1164 (2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in-service, post-service audiometric findings meet the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in-service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, a March 2013 VA examination report demonstrates bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385; March 2013 VA examination report. Thus, element one is established. Regarding the second element of service connection, as the Veteran has already been granted service connection for tinnitus related to in-service noise exposure, the Board concedes that the Veteran experienced significant noise exposure during service. Specifically, the Veteran has competently and credibly reported his constant exposure to excessive noise while working as a utilities equipment repairman and was subjected to around the clock artillery fire from tanks for six to seven years. Moreover, his DD 214 Form confirms his MOS as a utilities equipment repairman, which carries a high probably of hazardous noise exposure, and the Board finds his recollection of his in-service acoustic trauma consistent with the circumstances of his service and MOS. 38 U.S.C. § 1154(a). Therefore, an in-service injury in the form of acoustic trauma is shown and element two is also established. Regarding the third element, nexus, the Board acknowledges the VA examinations conducted in March 2013 and October 2019 and the addendum opinion rendered in December 2020; however, the Board finds these opinions are all inadequate, as the March 2013 VA examiner relies on the absence of evidence of disability in service treatment records (STRs) and does not consider the Veteran's conceded in-service acoustic trauma due to his MOS and his statements regarding his continuous and progressively declining hearing loss symptomatology since service, was not privy to the fact that he is service-connected for tinnitus and its impact on bilateral hearing loss, and provided limited and insufficient discussion of the September 2005 Institute of Medicine (IOM) Report (notably, while the report states that it is "unlikely" that the onset of hearing loss begins years after noise exposure occurs, it also states that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure); the October 2019 VA examiner also relies on the absence of evidence of disability in STRs and does not consider the Veteran's conceded in-service acoustic trauma due to his MOS and his statements regarding his continuous and progressively declining hearing loss symptomatology since service, does not address the fact that the Veteran's tinnitus has been attributed to service and the impact on his bilateral hearing loss, and provides limited and similarly insufficient discussion on the IOM Report; and the December 2020 VA examiner does not address the fact that the Veteran's tinnitus has been attributed to service and the impact on his bilateral hearing loss (specifically requested by the Board in its November 2020 remand). Thus, the March 2013 and October 2019 opinions are of no probative value and the December 2020 VA opinion is of low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board notes the IOM Report cited above by VA examiners discusses the unlikelihood of delayed onset hearing loss many years after noise exposure, but as stated above, is not conclusive in this regard and states that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." And finally, the Board notes the Veteran has competently and credibly reported that he experienced hearing loss symptoms during and since service due to his in-service acoustic trauma and also recalls that his hearing problems have progressed since discharge. See October 2017 Board Hearing Transcript at 8-9; see also 38 U.S.C. §§ 1101(3), 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). At this point, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); see Andrews v. McDonough, 34 Vet. App. 216 (2021)("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim.") Here, given the Veteran's competent and credible lay statements as to continuity of hearing loss symptomatology since service and IOM Report noting the possibility of delayed awareness of the effects on hearing loss, along with three unfavorable inadequate VA nexus statements, the evidence is in a state of relative equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected tinnitus, is remanded. Pursuant to the Board's November 2020 remand directives, addendum opinions addressing the etiology of the Veteran's psychiatric disorder were obtained in January 2021 and February 2021, with the latter opinion stating the Veteran's psychiatric conditions were due to two reported stressors from his National Guard service between 2002 and 2007. Notably, the Veteran did not report these stressors during his October 2017 hearing with the undersigned; therefore, on remand, efforts should be taken to confirm these two stressors, and the RO should determine the Veteran's ACDUTRA or INACDUTRA status for the same. This issue is REMANDED for the following action: Attempt to verify the Veteran's two reported stressors described in the February 2021 VA addendum opinion, to include determining whether or not the Veteran was on a period of ACDUTRA or INACDUTRA for each stressor. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.