Citation Nr: 21067426 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-26 949 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran served in combat in the Republic of Vietnam from June 1970 to June 1971; thus, his in-service exposure to significant acoustic trauma is presumed. 2. The record evidence shows that the Veteran has asserted consistently in lay statements and Board hearing testimony that his current bilateral hearing loss and tinnitus are related to his in-service exposure to significant acoustic trauma while in combat in Vietnam. 3. Resolving any reasonable doubt in the Veteran's favor, the record evidence supports finding that his current bilateral hearing loss and tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2020). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1969 to June 1971, including in combat in the Republic of Vietnam from June 1970 to June 1971. He also had additional unverified U.S. Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the currently appealed claims. A virtual Board hearing was held in July 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Because the Veteran currently lives within the jurisdiction of the RO in Louisville, Kentucky, that facility has jurisdiction in this appeal. The Board finds that the evidence supports granting the Veteran's claims of service connection for bilateral hearing loss and tinnitus. He essentially contends that his in-service exposure to significant acoustic trauma while in combat in Vietnam caused or contributed to his current bilateral hearing loss and tinnitus. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the record evidence supports his assertions regarding an etiological link between his in-service exposure to significant acoustic trauma while in combat in Vietnam and his current bilateral hearing loss and tinnitus. For example, the available service personnel records show that he was in the Republic of Vietnam from June 1970 to June 1971. His DA Form 20 shows that his tour of duty in Vietnam received a "V" designation for combat and he participated in an Unnamed Campaign while in Vietnam. Thus, the Board concedes that the Veteran likely had in-service exposure to significant acoustic trauma while in combat in Vietnam. The available service treatment records show that, at his pre-induction physical examination in April 1969, prior to his entry on to active service in November 1969, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -5 0 0 LEFT 10 5 5 5 5 He denied any relevant pre-service medical history. At his separation physical examination in June 1971, his hearing was 15/15 (or within normal limits) bilaterally on whispered voice hearing test. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also supports granting service connection for bilateral hearing loss and tinnitus. Consistent with the Veteran's lay assertions and Board hearing testimony, it shows that there is an etiological link between active service and bilateral hearing loss and tinnitus. For example, in a December 2016 letter, E. H., who identified himself as an audioprosthologist, stated that he had tested the Veteran's hearing and found he had bilateral sensorineural hearing loss. The Veteran reported to this clinician that he had served in the infantry "and [was] around constant weapons fire at that time" without hearing protection. He also reported having ringing in his ears. This clinician opined, "Chances are 50% or more likely" that the Veteran's bilateral tinnitus is related to active service. He recommended that the Veteran wear bilateral hearing aids. On VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in February 2017, the Veteran reported in-service exposure to "loud noise from artillery, helicopters, machine guns, and M16s." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 10 15 30 45 LEFT 5 10 20 35 50 Speech audiometry revealed speech recognition ability of 96 percent in each ear. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were related to active service. The rationale for this opinion was that the Veteran's bilateral hearing was normal at his pre-induction physical examination (although the VA examiner stated that the separation physical examination could not be located). The rationale also was that the service treatment records showed no complaints of or treatment for difficulty hearing or tinnitus. The diagnoses were bilateral sensorineural hearing loss and tinnitus. Having reviewed the February 2017 VA hearing loss and tinnitus DBQ, the Board finds that this evidence is not competent on the issue of whether bilateral hearing loss or tinnitus is related to active service. The rationale provided by the February 2017 VA examiner for the negative medical nexus opinions concerning the contended etiological relationships between bilateral hearing loss, tinnitus, and active service violates the Court's holdings in Buchanan and Barr. Id. This examiner specifically found persuasive support for these opinions in the absence of in-service complaints of or treatment for bilateral hearing loss and tinnitus. This opinion also is not competent on the issue of whether bilateral hearing loss or tinnitus is related to active service because it may not be based on all of the Veteran's available service treatment records. The February 2017 VA examiner stated that the Veteran's separation physical examination could not be located although the Board was able to locate this document easily and review it in the process of adjudicating the currently appealed claims. It is not clear from a review of the record evidence why the separation physical examination was not available for review by the February 2017 VA examiner especially in light of the statement that this clinician reviewed the Veteran's claims file, including service treatment records and post-service VA treatment records. Thus, the Board finds that the February 2017 VA examiner's opinions are not probative on the issue of whether bilateral hearing loss or tinnitus is related to active service. The Veteran testified at his July 2021 virtual Board hearing that, while he was in Vietnam, he was assigned to an infantry brigade located in the central highlands of Vietnam and, at least once a month, he went out in to the field with other soldiers in his infantry brigade to take care of personnel issues. See Board hearing transcript dated July 20, 2021, at pp. 4. He also testified that, while out in the field, he was exposed to significant acoustic trauma from helicopters, rifle fire, and land mines. He testified further that, following service, his post-service employment involved wearing hearing protection when exposed to noise but otherwise he did not have occupational noise exposure. Id., at pp. 4-6. He also testified further that he initially noticed his hearing problems and ringing in his ears while in Vietnam. Id., at pp. 7-8. The Board has conceded the Veteran's in-service exposure to significant acoustic trauma while in combat in Vietnam. He has asserted consistently in lay statements and Board hearing testimony that this in-service exposure to significant acoustic trauma while in combat in Vietnam caused him to experience problems hearing and ringing in his ears during active service. He also has asserted consistently that his bilateral hearing and tinnitus worsened since his service separation. It is undisputed that the Veteran currently experiences bilateral hearing loss and tinnitus. The Board also has found the February 2017 VA examiner's opinions to be not competent and not probative on the issue of whether bilateral hearing loss and tinnitus are related to active service. A private clinician opined in December 2016 that the Veteran's tinnitus is related to his active service, specifically his conceded in-service exposure to significant acoustic trauma while in combat in Vietnam. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board acknowledges that there is no medical opinion currently of record which relates the Veteran's current bilateral hearing loss to active service. Nevertheless, the competent record evidence reasonably supports finding that the Veteran's bilateral hearing loss and tinnitus are related to active service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.