Citation Nr: 1743973	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  07-20 441	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	James G. Fausone, Esq.


ATTORNEY FOR THE BOARD

N.S. Pettine, Associate Counsel





INTRODUCTION

The Veteran served in the Massachusetts Army National Guard from January 1953 to June 1960 and in the United States Army Reserve until April 1961.

This matter initially came before the Board of Veterans' Appeals (Board) from a September 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO informed the Veteran that because he had not provided proof of service for his actual active duty dates, it was required to deny his claim for entitlement to service connection for bilateral hearing loss and tinnitus.

Similarly, in August 2009, the Board denied the claim based on a lack of basic eligibility for VA benefits based on the absence of proof of service requisite to establish veteran status and entitlement to compensation under VA law and regulations.

In January 2010, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion vacating the Board's August 2009 decision and remanding the matter to the Board.  In May 2010 and February 2012, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development.

Then, in a February 2016 decision, the Board determined that the Veteran had established basic eligibility for VA benefits.  It then remanded the Veteran's pending claims for bilateral hearing loss and tinnitus to the AOJ for adjudication on the merits.  The case has now again returned to the Board for appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.S. § 7107(a)(2) (LexisNexis 2017).





FINDINGS OF FACT

1.  The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and evidence indicates that it is at least as likely as not a result of service or etiologically related to in-service acoustic trauma.

2.  The Veteran currently has tinnitus and evidence indicates that it is at least as likely as not a result of service or etiologically related to in-service acoustic trauma.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.S. §§ 101(24), 1110, 1131, 5107(b) (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for tinnitus are met.  38 U.S.C.S. §§ 101(24), 1110, 1131, 5107(b) (LexisNexis 2017); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.S. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Additionally, other organic diseases of the nervous system, which may include sensorineural hearing loss and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies.  38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (including tinnitus as an organic disease of the nervous system).  Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the appellant's separation from service.  Walker, 708 F.3d at 1338.

Lastly, service connection may also be established for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  To substantiate 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); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, a layperson is competent to identify tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).

At the outset, the Board finds that the Veteran presently has both bilateral hearing loss and tinnitus.  As a layperson, the Veteran is competent to report and describe observable symptoms which he experiences with his own senses, including ringing in his ears.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran has done so credibly in this instance, including in a June 2016 statement.  Additionally, an April 2016 VA examination report confirms that the Veteran has bilateral sensorineural hearing loss of sufficient severity to qualify as a disability pursuant to 38 C.F.R. § 3.385.

Next, the Board finds that the Veteran incurred in-service acoustic trauma.  Paperwork associated with the Veteran's discharge from the National Guard states that he served in the 772nd Anti-Aircraft Artillery Battalion and that he operated a 90 mm gun.  Further, in the February 2016 decision and remand, the Board already acknowledged that the Veteran experienced excessive noise exposure and acoustic trauma during multiple periods of active duty for training (ACDUTRA) between January 1953 and June 1960.

Lastly, the Board finds a sufficient nexus linking both the Veteran's bilateral hearing loss and tinnitus to service.  Specifically, in a June 2017 medical opinion, a Veterans Health Administration (VHA) clinician opined that it was at least as likely as not that the Veteran's bilateral hearing loss was related to or had its onset during service.  The VHA clinician noted the Veteran's in-service acoustic trauma and exposure to excessive levels of noise and stated that, without proper documentation, it would be improper to speculate that the Veteran suffered from sustained post-service noise injuries as a civilian.

In regard to the Veteran's tinnitus claim, the VHA clinician opined that it was at least as likely as not related to service.  The VHA clinician explained that the Veteran had an active diagnosis of hearing loss and that tinnitus was a known symptom associated with hearing loss.

The Board is cognizant that, in April 2016, a VA examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of service.  In support of her opinion, the examiner stated that: (1) the Veteran could not identify a specific event when his ability to hear decreased; (2) the Veteran did not report a hearing loss claim while with the National Guard; and (3) the Veteran stated that he reported noticing diminished hearing within the past 15 years, more than 40 years since discharge.

However, the Board finds the April 2016 VA examiner's opinion inadequate and thus of minimal probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Firstly, hearing loss need not be shown in service for service connection to be established.  Secondly, the absence of audiometric testing during the years following service does not warrant a conclusion that hearing loss did not manifest within one year from discharge, as sensorineural hearing loss is a chronic condition for VA purposes.  See 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease).  

In sum, the Board finds that the preponderance of the evidence demonstrates that the Veteran's current bilateral hearing loss and tinnitus are related to service.  Accordingly, the Board will grant the Veteran's claims.  38 C.F.R. §§3.303, 3.310.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.





____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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