Citation Nr: 18131191
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-03 147
DATE:	August 31, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is granted.
Entitlement to service connection for tinnitus is granted.
FINDINGS OF FACT
1. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss disability is related to his in-service noise exposure.
2. The evidence is at least evenly balanced as to whether the Veteran’s current tinnitus is related to his in-service noise exposure and/or his now service connected hearing loss.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).
2. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Air Force from September 1964 to May 1967.
This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming in which the RO denied entitlement to service connection for bilateral hearing loss and tinnitus.  The Veteran timely filed a notice of disagreement (NOD) and substantive appeal, via a VA Form 9. 
Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military 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 incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  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 discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
1. Entitlement to service connection for bilateral hearing loss
For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels.  Id. at 157.
The Veteran contends that his current bilateral hearing loss disability is a result of his in service noise exposure.  The Veteran’s military personnel records reflect that he was a part of a combat defense squad. 
Service treatment records (STRs) reflect normal hearing bilaterally at entrance and separation.  The Veteran’s DD 214 reflects that his military occupational specialty (MOS) was an air policeman.  
Post service, a September 2013 audiological VA examination revealed the following pure tone threshold in decibels:
Hertz
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right	35	35	30	45	60
Left	50	40	35	50	55

His speech recognition scores were 100 percent for the right ear and 96 percent for the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz.  The Veteran reported that he was a combat veteran who served as a security policeman.  He reported that he was around gunfire, grenade launchers, mortar attacks, and fighter planes.  He reported that he was not issued nor did he war ear protection.  Following service, he reported that he was a surveyor until 1990 and subsequently worked as an airline mechanic.  The audiologist opined that the Veteran’s hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service.  As rationale, she reported that hearing was within normal limits at entry of service and exit from service.  She also reported that there were no significant threshold shifts that would indicate a response to noise exposure.
In a September 2014 procedure note from a private audiologist, she noted puretone air and bone conduction test results revealed mild to moderate bilateral sensory hearing loss.  She noted that his word recognition test results revealed 84 percent for the right ear and 80 percent for the left ear.  She opined that the testing results, along with case history, was consistent with noise induced hearing loss more-likely than not with at least the onset connected to military noise exposure.  
In a January 2016 letter, the private audiologist expanded on her September 2014 rationale.  She opined that it is in the professional opinion of the examination and reviewer of the Veteran’s STRs, discussion of his hearing healthy history, and etiology of hearing loss and tinnitus based on current literature and ongoing clinical experience, that it is as likely as not (50 percent greater than chance) that his military service contributed to his onset hearing loss and tinnitus.  She noted that the exit/separation frequency specific hearing configuration was consistent with “classic noise-notch” for his left ear.  She noted that the Veteran reported significant military noise exposure and DD 214 MOS documentation of duties involving noise exposure.  She noted that hearing protection was not provided or used during military training, or active duty combat activities of high, potentially dangerous noise levels.  She noted that it is well documented in the literature that noise-induced hearing loss accrues gradually over months and years more often because of metabolic changes in the cochlea.  The audiologist acknowledged that the Veteran was exposed to occupational noise following his military service; however, she reported that his occupational noise exposure was monitored via hearing protective devices, training, supervision, educational program, and annual monitoring.
Upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss is warranted.  As an initial matter, the Board finds that the preponderance of evidence supports a current hearing loss disability and in-service noise exposure.  Thus, the dispositive issue is whether there is a nexus between the two. 
The September 2013 audiological opinion reflects a lack of relationship between the current hearing loss disability and the in-service noise exposure.  Specifically, the audiologist based her opinion on the fact that the STRs reflect normal hearing at entrance and separation.  Although she noted in-service noise exposure, based on the lack of finding of a hearing loss disability in service, the audiologist concluded that there was no relationship between the Veteran’s conceded noise exposure and current disability.  This opinion is, however, flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss.  Ledford v. Derwinski, 3 Vet. App. 87 (1992). 
In contrast to the above inadequate opinion, the private audiologist provided a detailed explanation for her positive medical opinion, based on the Veteran’s statements, examination, and medical literature and studies in support of her opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Moreover, while the medical opinion relied, in part, on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran.  See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006).  Here, the Board has found the Veteran’s statements to be credible.
Finally, although the Veteran’s DD 214 does not indicate that he received any decorations indicative of combat, his military personnel records reflect that he was a part of a combat defense squad.  Given this evidence and the Veteran’s credible lay statements, the Board finds that he engaged in combat.  VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service); Gaines v. West, 11 Vet. App. 353, 359 (1998) (evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence); Sizemore v. Principi, 18 Vet. App. 264 (2004) (receiving enemy fire or firing on an enemy can constitute participation in combat). 
The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred.  Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154 (b)).  This is an additional basis for the Board to accept the Veteran’s testimony that he suffered acoustic trauma in service.  Moreover, the fact that the claimed cause of the Veteran’s hearing loss, i.e., acoustic trauma from equipment and explosions, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service.  Reeves, 682 F.3d at 999.
Given the adequate positive medical nexus opinion and competent, credible lay evidence of current bilateral hearing loss that had its onset in service, the evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to his in-service noise exposure.  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.
2. Entitlement to service connection for tinnitus
The Veteran contends that his tinnitus is related to his in-service noise exposure.  He reported that his tinnitus began and has continued since service.
The Board notes that tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”).  Furthermore, medical treatment evidence of record reflects a diagnosis of tinnitus.  Thus, the Veteran has met the current disability requirement.
As noted above, the Veteran asserted that he was subject to noise exposure during active service as a policeman.  His statements have been found competent, credible, and consistent with the circumstances of his service.  See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  Therefore, the Veteran has met the in-service injury requirement.  Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure.
The September 2013 VA audiologist opined that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. 
 
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While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  The evidence before the Board consists of credible lay evidence of current tinnitus that had its onset in service as well as an adequate medical opinion associating the Veteran’s tinnitus with his bilateral hearing loss.  The evidence is therefore at least evenly balanced as to whether the Veteran’s tinnitus is related to his in-service noise exposure and/or caused by his now service connected hearing loss.  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 tinnitus is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Laroche, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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