200113-53714

• Court: Board of Veterans' Appeals
• Decided: January 31, 2020
• Docket: 200113-53714
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 01/31/20 Archive Date: 01/31/20

DOCKET NO. 200113-53714 DATE: January 31, 2020

ORDER

Service connection for tinnitus is granted.

Service connection for bilateral hearing loss is granted.

FINDINGS OF FACT

1. The Veteran’s tinnitus began during active service.

2. The Veteran’s bilateral hearing loss was caused by his military noise exposure.

CONCLUSIONS OF LAW

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

2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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 (2017), 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 served on active duty from June 1965 to May 1967.

The Board notes that the decision on appeal was issued in December 2019. The Veteran timely filed a supplemental claim in October 2019 and the AOJ issued a December 2019 AMA decision. In January 2020, the Veteran timely appealed that decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board is limited to review of the evidence in the record up and until the date of the rating decisions on appeal; for the issue adjudicated below, that date is December 2019 and no additionally submitted evidence may be considered.

Service connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

1. Tinnitus

The Veteran contends that his current tinnitus is related to his military service.

The Veteran asserts that his tinnitus is the result of noise exposure he experienced while in active service. The AOJ found that the Veteran’s military occupation as a wheeled vehicle mechanic had a high probability for hazardous noise exposure. The question is therefore whether a causal relationship or nexus exists between the Veteran’s active service and his current tinnitus.

The Veteran’s service treatment records note a 1966 complaint and treatment for a “popping” sensation in his ears. The Veteran’s separation report of medical history survey includes a complaint of ear trouble during service. The Veteran confirmed exposure to excessive noise in service due to operating heavy equipment serving as a mechanic. The June 2019 VA examiner opined that it is highly likely that the Veteran was exposed to hazardous noise in service and noted that excessive noise is known to cause tinnitus.

The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran is uniquely situated to report when he first began to experience symptoms of tinnitus. He credibly clarified in a June 2019 statement, that he had ringing in his ears in service and that the condition has continued since that time. The Veteran reported that he is unsure of his exact in-service onset date, however, he noted ear trouble in his report of medical history survey at his separation. The Veteran did not seek to embellish his account in any way, and the Board finds it to be credible. Thus, the Veteran’s tinnitus, a chronic disability, began in service and has continued since. Therefore, service connection is granted.

2. Bilateral hearing loss.

A review of the Veteran’s service treatment records shows a significant change in his hearing acuity from the time of enlistment to the time of separation, and it is conceded that the Veteran had military noise exposure. Moreover, service treatment records show that the Veteran demonstrated some hearing loss in both ears, albeit not for VA purposes during his time in service, once the adjustment is made to the readings to account for the possibility that the American Standards Association (ASA) units were used rather than the International Standards Organization-American National Standards Institute (ISO-ANSI) units.

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Given that hearing loss was shown in service, the Board will grant service connection for bilateral hearing loss.

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board M. Franklin, Associate Counselor

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.