Citation Nr: 0812254 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-04 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office 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: The American Legion ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran had active service from October 1942 to November 1945, including combat service in World War II, and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (BVA or Board) from the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran has bilateral hearing loss for VA compensation purposes that is related to in-service combat- related acoustic trauma. 2. Resolving all reasonable doubt in the veteran's favor, his tinnitus is related to in-service, combat-related acoustic trauma. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.385 (2007). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection bilateral hearing loss and tinnitus. This constitutes a complete grant of the benefits sought on appeal. Thus, a discussion of VA's duties to notify and assist is unnecessary. The veteran essentially asserts that service connection for bilateral hearing loss and tinnitus is warranted because he developed both conditions due to in-service, combat-related acoustic trauma. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease 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). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The veteran served in combat and was likely exposed to acoustic trauma while serving in World War II given that such exposure is consistent with the circumstances, conditions and hardships of that service. 38 U.S.C.A. § 1154(b). As such, VA must presume the occurrence of the in-service injury. A May 2005 VA examination indicates that the veteran has bilateral hearing loss. In particular, it confirmed that he has hearing loss as defined by 38 C.F.R. § 3.385. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 70 70 80 90 LEFT 70 70 70 80 85 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 85 percent in the left ear. He was diagnosed with severe bilateral sensorineural hearing loss. The veteran also submitted a private audiological evaluation dated in September 2003. The evaluation concluded that he had bilateral sensorineural loss. The May 2005 VA examiner also indicated that the veteran had bilateral tinnitus. Thus, the evidence shows he has both bilateral hearing loss and bilateral tinnitus. Next, the medical evidence reflects a nexus between the veteran's current bilateral hearing loss and active duty. The May 2005 VA examiner stated that she had reviewed the appellant's claims file. Based on the available evidence, a clinical assessment was rendered finding that veteran's bilateral hearing loss was at least as likely as not related to noise exposure in service. This is not contradicted by any other evidence in the claims file. Thus, service connection for a bilateral hearing loss disability is warranted. As to his tinnitus, at the May 2005 VA examination the veteran reported that he began experiencing tinnitus several years ago, but he could not recall the exact circumstances related to the onset. He described exposure to military noise during World War II and acknowledged post-service noise exposure. The examiner concluded that an opinion regarding the relationship between exposure to service noise and tinnitus would be speculative because the veteran was unable to provide sufficient information regarding the time and circumstances of its onset. In light of the veteran's decorated combat service, his credible account of having tinnitus from exposure to combat- related acoustic trauma, the current diagnosis of tinnitus, and resolving doubt in the veteran's favor, the Board finds that the tinnitus had its onset as a result of the veteran's period of active service. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs