Citation Nr: 1648544	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  09-17 376	)	DATE
	)
	)

 On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York



THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus. 



REPRESENTATION

Veteran represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1963 to June 1966, to include service in the Republic of Vietnam.  His awards and decorations include a Combat Action Ribbon, a Vietnam Service Medal with two Bronze Campaign Stars, and two Republic of Vietnam Meritorious Unit Citations, among others.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office. 

This case was originally before the Board in April 2013, where the claims for service connection for bilateral hearing loss and tinnitus were reopened and remanded.  The merits of the claims were remanded again for additional development in June 2015.  The case has since been returned to the Board for appellate review. 

   
FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is related to in-service acoustic trauma.

2.  The Veteran's tinnitus is caused by his bilateral hearing loss.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in active service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2016).

2.  Tinnitus was caused by service-connected bilateral hearing loss.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that his bilateral hearing loss and tinnitus were incurred as a result of his exposure to loud noise from artillery and gunfire during his active military service.  For the reasons that follow, the Board finds that the Veteran's bilateral hearing loss and tinnitus are related to service and concludes that service connection is warranted.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system.  38 C.F.R. §§ 3.307, 3.309(a).  Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered by VA to be chronic diseases.  38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).
Regarding the first element of a service connection claim, impaired hearing is 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 those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385.  The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 

A diagnosis of right ear hearing loss meeting the requirements of 38 C.F.R. § 3.385 was first demonstrated at the Veteran's March 2007 VA examination.  Chronic tinnitus was noted in a December 2005 VA medical record.  Both diagnoses were also affirmed at the Veteran's June 2013 VA examination.  A diagnosis of left ear hearing loss meeting the requirements of 38 C.F.R. § 3.385 was also made at that time.  The examiner noted that the etiology of the Veteran's tinnitus was at least as likely as not "a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss."  Thus, the Board finds that the first element of a service connection claim has been met. 

Next, the evidence of record supports a finding that the Veteran sustained an in-service injury in the form of combat-related acoustic trauma.  The Veteran's DD Form 214 indicates the Veteran, an infantryman, was awarded a Combat Action Ribbon, which is indicative of combat service.  The Veteran asserts that his current hearing loss and tinnitus are the direct result of acoustic trauma sustained in combat service, specifically, regular loud noise exposure as a machine gunner in Vietnam.  Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of claims for service connection for hearing loss and tinnitus.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (jet aircraft noise).  

While service treatment records do not show that the Veteran had a hearing loss disability as defined in 38 C.F.R. § 3.385 during service or at separation from service, when a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service."  38 U.S.C.A. § 1154(b).  The combat presumption of section 1154(b) applies to this case as the Veteran was awarded a Combat Action Ribbon for his service in the Republic of Vietnam.  Based on the service records, and the Veteran's credible statements, and by applying 38 U.S.C.A. § 1154(b), the Board concludes that the Veteran sustained an injury during service, satisfying the second element of both claims on appeal.

With regard to the third element of service connection, a nexus between the claimed in-service disease or injury and the current disability, the Board turns to competing VA and private medical opinions that address this question.  The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The Veteran underwent VA examinations in March 2007, January 2008, and June 2013.  The Board found the June 2013 examination inadequate because the examiner did not fully discuss the evidence of record and based its opinion on the lack of medical evidence of hearing loss in service, and remanded the claims for an Addendum Opinion, which was completed in July 2015. 

The Board finds the July 2015 Addendum Opinion is of limited probative value.  In its remand instructions, the Board required the examiner to "discuss medically known or theoretical causes of hearing loss and tinnitus" and to specifically "discuss the February 2006 and June 2010 statements from the Veteran's private physician, Dr. E.J.B., and the Veteran's post-service occupational and noise exposure."  However, the July 2015 examiner, an audiologist, based the opinion on a lack of evidence in the Veteran's service treatment records, noting his separation exam showed hearing within normal limits.  The absence of in-service evidence of a hearing disability, however, is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Further, the July 2015 VA examiner did not consider the Veteran's probative lay statements that he experienced symptoms of hearing loss that began during service.  See Dalton v. Nicholson, 21. Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion).  In addition to evidence that the Veteran engaged in combat while serving in Vietnam, he reported a specific incident where his squad was pinned down next to two tanks that were firing for the majority of one day.  He indicated he was not wearing hearing protection and he and many men in his squad were unable to hear for several days after.  The Veteran has also claimed that he was told he had hearing loss when he was hired at Eastman Kodak in August of 1966, less than one year from his release from active duty, and again in 1997. 

In contrast, the Board finds the two nexus opinions by Dr. E.J.B., an otolaryngologist, to be probative evidence in favor of the Veteran's claims.  Doctor E.J.B. evaluated the Veteran for hearing loss and tinnitus since 2006 and opined that "it is more likely than not that [the Veteran's] hearing loss and tinnitus are related to his military service."  He based his opinion on the Veteran's "history, clinical findings, and nature of [the Veteran's] high frequency hearing loss."  In discussing his opinion, Dr. E.J.B. noted that the Veteran reported no significant noise exposure since leaving active service, and that the Veteran "has complained of hearing loss and tinnitus of an ongoing nature."  Further, Dr. E.J.B. did consider the Veteran's Military Occupational Specialty, in contrast to the VA examiner, noting that the Veteran "was around a lot of loud noises, artillery, and small arms fire."  The Board notes that the July 2015 VA examiner dismissed these private opinions because they "would not have included review of the service release audiogram showing normal hearing at separation," but finds no evidence indicating that Dr. E.J.B. did not review the Veteran's separation examination and a private medical opinion may not be discounted solely because the opining physician did not review the claims file.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 

Given the foregoing, the Board finds entitlement to service connection for bilateral hearing loss is warranted because the most probative evidence of record establishes that the Veteran has a current bilateral hearing loss disability, was exposed to significant noise in the military while serving as a machine gunner during combat in the Republic of Vietnam, and his current hearing loss is related to the in-service noise exposure.

In addition, the June 2013 VA examiner specifically opined that the Veteran's tinnitus is as likely as not a symptom associated with his (now service-connected) hearing loss.  As there is no evidence in significant conflict with this opinion, entitlement to service connection for tinnitus, as secondary to service-connected bilateral hearing loss, is warranted.  38 C.F.R. § 3.310(a).  
ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus, as secondary to bilateral hearing loss, is granted.


____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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