Citation Nr: 21021428 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 19-13 136 DATE: April 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a headache disorder is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was caused by in-service acoustic noise exposure. 2. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus was caused by in-service acoustic noise exposure. 3. The evidence is at least evenly balanced as to whether the Veteran’s headache disorder is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a headache disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to March 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In a September 2019 decision, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims of entitlement to service connection. The Veteran timely appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In an August 2020 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), partially vacated the September 2019 Board decision, and remanded the matter to the Board for readjudication consistent with the JMPR. In October 2020, the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development, to include providing VA medical opinions. After accomplishing further action, the AOJ continued to deny the Veteran’s claims (as reflected in a December 2020 supplemental statement of the case (SSOC)). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, 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 or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hearing loss and tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are due to in-service acoustic trauma he suffered from loud noise exposure while serving as an air traffic control (ATC) operator. The Veteran’s DD Form 214 confirms that his military occupational specialty (MOS) was ATC. The Veteran’s service treatment records (STRs) reveal normal hearing thresholds at his entrance; his December 1969 separation examination noted his hearing to be normal. Pursuant to the Board remand, in December 2020 the Veteran underwent VA examination, which confirmed his bilateral hearing loss and tinnitus, but stated it was less likely than not related to his active service. As rationale for hearing loss disability, the examiner conceded in-service acoustic trauma but opined that “[t]here is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation which is objective evidence of no permanent auditory damage on active duty from conceded noise.” As rationale for tinnitus, the examiner stated that there was “no report of complaint/treatment for tinnitus at separation. Although noise exposure is conceded and the relationship of noise, auditory damage, hearing loss and tinnitus is well established, auditory damage, hearing loss and tinnitus are not conceded based on noise alone” However, the Board finds that the examiner’s opinions are flawed as they were based on the absence of in-service evidence of bilateral hearing loss and tinnitus disabilities. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). The Veteran asserted that his current hearing loss and tinnitus are related to his exposure to very loud noises while serving as an ATC operator in Vietnam. Moreover, he reported that his duties as an ATC operator at the airfield in Chu Lai include up to 1100 fixed wing operations per day. He further stated that hearing protection was available but was not consistently used. See May 2016 VA examination. The Veteran’s own lay statements regarding the onset of his hearing loss and tinnitus in service, and continued diminished hearing since discharge from service are competent and credible. As noted above, the Veteran’s DD Form 214 confirms that his MOS was ATC operator and that he served in Vietnam from May 1968 to January 1969. Moreover, the VA examiner conceded military noise and acoustic trauma exposure based on his MOS. Given the competent and credible statements as to in-service noise exposure consistent with the nature and proximity of the Veteran’s active service duties and experiences and hearing difficulties in and since service, the evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss and tinnitus is related to his in-service acoustic trauma. 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 and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Entitlement to service connection for a headache disorder The Veteran contends that his headaches are related to service. STRs dated in April 1969 note the Veteran reported having headaches for six weeks, and was questionable for an eye strain. On the December 1969 report of medical history prior to separation, the Veteran reported frequent/severe headaches. Pursuant to the Board remand, the Veteran underwent VA examination in December 2020. The examiner noted the Veteran’s diagnosed headaches, indicating that he said they began in 1968 (while the Veteran was in service). The Veteran reported that his headaches continued to worsen over time. Symptoms include constant head pain and that his upper spine/base of neck radiates up. Regarding etiology, the examiner stated that the Veteran’s disability was less likely than not related to service. As rationale, she noted his STRs documenting headaches and post-service complaints of headaches but also noted that he denied headaches on his April 2015 physical and March 2016 Agent Orange registry examination. Moreover, she stated that “[r]ecords are silent for complaints, diagnoses, treatment for 45 years after service.” However, the Board notes that VA treatment records dated in November 2004 indicate that the Veteran has been suffering from chronic headaches. Moreover, the Veteran stated he began experiencing his chronic headaches in Vietnam because he was exposed to constant loud noise that he describes as excruciating. See May 2016 VA examination. Notably, the October 2020 remand specifically directed the examiner to address the Veteran’s assertions of continuous chronic headaches since Vietnam as noted in the May 2016 VA examination. However, the examiner did not discuss those contentions as directed. Therefore, there has not been substantial compliance with the October 2020 remand. As noted above, the Veteran’s STRs document his in-service headaches. In addition, he has stated that he has suffered from chronic headaches since service. The Veteran is competent to say that he has experienced headaches since service and the Board finds his statements credible. Given the competent and credible lay statements as to the Veteran’s continuous chronic headaches since service, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran’s headaches disability is related to his service. 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 a headache disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.