190110-2231

CourtBoard of Veterans' Appeals
DecidedDecember 31, 2019
Docket190110-2231
StatusUnpublished

This text of 190110-2231 (190110-2231) is published on Counsel Stack Legal Research, covering Board of Veterans' Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
190110-2231, (bva 2019).

Opinion

Citation Nr: AXXXXXXXX Decision Date: 12/31/19 Archive Date: 12/30/19

DOCKET NO. 190110-2231 DATE: December 31, 2019

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 in equipoise as to whether the Veteran’s bilateral hearing loss is related to his service.

2. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his service.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2018).

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty from June 1972 to June 1976.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in VA’s test program, RAMP, the Rapid Appeals Modernization Program.

The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form. Accordingly, the September 2018 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested the Direct Review, a process in which the Board reviews evidence of record at the time of the prior decision.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases, such as organic diseases of the central nervous system such as sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d).

The analyses below focus on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

1. Service connection for bilateral hearing loss.

2. Service connection for tinnitus

The Veteran contends that he has bilateral hearing loss and tinnitus caused by noise exposure during active duty. The Board finds the evidence is in relative equipoise concerning these claims.

A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

The medical evidence of record establishes that the Veteran has current disabilities of bilateral hearing loss (as per 38 C.F.R. § 3.385) and tinnitus. Additionally, the Veteran reported that, during active service, he was exposed to small arms fire on the firing range and helicopter noises during transports. After being on the range, his hearing was muffled for several hours but eventually returned. He stated that, about midway through his tour in the Republic of Korea, his ears developed tinnitus which persists today. Hearing protection was only somewhat available at the time and was seldom used, as it was not widely enforced. He denied post-service occupational or recreational hazardous noise exposure.

Service medical records show that the Veteran’s hearing did shift during service, but was still considered “within normal limits.” Other service examinations of record that do not show names or dates of testing indicate that some levels stayed the same but that some frequencies shifted up to 20 decibels on from one test to the other.

The Board concedes the Veteran’s in-service noise exposure, as it is consistent with his duties. In short, the requirements for elements (1) and (2) of Shedden are met. Thus, the Board must determine element (3) of Shedden, whether the evidence is sufficient to show a link, or nexus, between the Veteran’s current hearing loss and tinnitus, and his active service.

In correspondence received in February 2015, the Veteran’s treating audiologist opined that overall test results revealed a moderate to profound sensorineural loss in the right and left ears, respectively. Based on these hearing level findings, it was his opinion that support for military noise exposure, as a direct cause, of the Veteran’s hearing loss and tinnitus did exist.

The August 2015 VA examiner opined that the Veteran’s bilateral hearing loss was less likely as not caused by acoustic trauma sustained during military service. The rationale was that the hearing testing conducted at enlistment and at discharge showed no significant threshold shift.

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Related

Timberlake v. Gober
14 Vet. App. 122 (Veterans Claims, 2000)
Ledford v. Derwinski
3 Vet. App. 87 (Veterans Claims, 1992)
Caluza v. Brown
7 Vet. App. 498 (Veterans Claims, 1995)

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Bluebook (online)
190110-2231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/190110-2231-bva-2019.