Citation Nr: 0811823 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-13 971 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 determination by the Department of Veterans Affairs Regional Office in St. Petersburg, Florida. FINDINGS OF FACT 1. It is as likely as not that the veteran's current bilateral hearing loss is the result of his service. 2. It is as likely as not that the veteran's current tinnitus is the result of his service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is established. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Service connection for tinnitus is established. 38 U.S.C.A. 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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 requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Importantly, the Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The veteran stated in support of this claim that his hearing was damaged due to his time in service, during which he worked as a "powerman" for nearly two years, maintaining diesel-powered generators in an enclosed building with no means of ear protection or conservation. The veteran worked as an electrician for his subsequent two years in service. The evidence, including service personnel records (SPRs), supports the veteran's statements of time spent as a powerman with regular noise exposure and as an electrician. The veteran's testimony is found to be very credible. The service medical records (SMRs) indicate no complaints of, or treatment for, hearing loss. The separation examination indicates hearing at a normal level of 15/15 in both ears, providing limited evidence against this claim. A medical note submitted by Dr. "F." indicates that he has treated the veteran regularly since November 1976. At the veteran's first complete physical examination by Dr. F., the veteran began to complain of hearing loss attributed to his service, a complaint that continued throughout the years as Dr. F.'s patient. Dr. F. opined that "there is no other cause that can be discerned for his hearing loss other than that of his work while in Armed Forces. ... I believe he has a legitimate reason to feel that his hearing loss is causally related to his time in the Armed Forces." The Board finds that this medical opinion is entitled to some probative weight. A private audiological evaluation was performed in December 2003 at the First Coast Hearing Clinic in Palm Coast, Florida. The examiner found the veteran to have constant high-pitched/hissing tinnitus, as well as mild sloping to moderate sensorineural hearing loss bilaterally. The examiner opined that "the sensorineural component to this hearing loss and tinnitus are more likely than not to have been caused by excessive exposure to noise such as during [the veteran's] military career." The Board finds that this medical opinion is entitled to some probative weight. The examiner's opinion is consistent with the veteran's medical history. A VA audiological evaluation was performed in June 2003. The evaluation revealed bilateral, symmetrical, smoothly sloping, mild to severe sensorineural hearing loss, as measured by the VA standards stated above and explained in 38 C.F.R. § 3.385. The VA examiner was asked to provide an opinion based on the June 2003 evaluation. In February 2004, the VA examiner opined that it was not possible for her to render an opinion as to the etiology of the hearing loss without resorting to conjecture. In March 2006, the veteran was afforded an audiological evaluation with the same VA examiner, who again could not state a definitive opinion. The examiner stated, "I cannot resolve this issue [of service connection for bilateral hearing loss] without resorting to mere speculation." In both the February 2004 and the March 2006 evaluations, the examiner cited a positive history of occupational noise as a relevant factor in determining the etiology of the veteran's hearing loss. The veteran has stated that his post-service occupation did not in fact include noise exposure, as his work in the electrical field was in a supervisory, administrative capacity. Again, the Board finds the veteran's testimony at the February 2008 hearing to be credible. In April 2007, the VA examiner was asked to provide an opinion based on additional evidence submitted by the veteran, as well as the claims file. The examiner opined "that the veteran's current hearing loss and tinnitus are less likely than not related to noise exposure during the military". The Board finds that this medical opinion is entitled to some probative weight. Because there is an approximate balance of positive and negative medical evidence, the benefit-of-the-doubt standard applies. 38 U.S.C.A. § 5107(b). Reasonable doubt as to the origin of the veteran's bilateral hearing loss and tinnitus will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Accordingly, the appeal is granted. Duty to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs