Citation Nr: 0813184 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-13 947A ) 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 bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from December 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating action of the Department of Veterans Affairs Regional Office (RO) in Indianapolis, Indiana. In that decision, the RO denied service connection for bilateral hearing loss and bilateral tinnitus. During the current appeal, and specifically in July 2005, the veteran's claims folder was transferred to the RO in St. Petersburg, Florida due to a change in the location of his residence. FINDINGS OF FACT 1. Bilateral hearing loss has been associated with the veteran's active service. 2. Bilateral tinnitus has been associated with the veteran's active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 2. Bilateral tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And To Assist The Veterans Claims Assistance Act of 2000 (VCAA), which was enacted on November 9, 2000, eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Since the enactment of the law, the VCAA has been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA and to those claims which were filed before the date of enactment but which were not yet final as of that date. The Board has considered this new legislation but finds that, given the favorable action taken herein with regard to the veteran's claims for service connection for bilateral hearing loss and bilateral tinnitus, no further discussion of the VCAA is required with respect to these issues. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2007). In addition, service connection for certain diseases, such as an organic disease of central nervous system, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2007). 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 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 (2007). Throughout the current appeal, the veteran has asserted that he developed bilateral hearing loss and bilateral tinnitus as a result of acoustic trauma to which he was exposed during his active military duty in Vietnam. The veteran acknowledges that his military occupational specialties included responsibilities as an administrative clerk (in the United States) and a criminal investigator (in the Republic of Vietnam). He maintains, however, that, while training to fire or undergoing familiarization firings of various firearms (including M-14 and M-16 rifles as well as a .38 caliber revolver), he was not issued any type of hearing protection. He describes additional noise exposure from the helicopters in which he traveled around Vietnam and from nightly outgoing mortar fire. Since service, he has been employed as an accountant and has not engaged in any hobbies (such as "woodworking") that typically involve loud noise environments. See, e.g., August 2007 videoconference hearing transcript (T.) at 4-20. According to service personnel records, the veteran served in the Republic of Vietnam for one year between July 1969 and July 1970. His military occupational specialty was that of a clerk typist, and he received the Marksmanship Badge (M-14 Rifle) and a medal for training on the M-16 rifle. His pre-service occupation was that of an accountant. A. Bilateral Hearing Loss Service medical records are negative for complaints of, treatment for, or findings of hearing loss or tinnitus. The July 1970 separation examination demonstrated normal bilateral hearing acuity by whispered voice testing. Although the report of a January 2003 private audiological evaluation is only partially legible, the document does appear to reflect some degree of hearing loss bilaterally. At an August 2006 VA audiological examination, the veteran described his in-service noise exposure. This evaluation demonstrated the following puretone thresholds: 5 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 60 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, and 70 decibels at 4000 Hertz (in the right ear) and 10 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, 55 decibels at 3000 Hertz, and 55 decibels at 4000 Hertz (in the left ear). The veteran had speech discrimination scores of 96% correct in each ear. The examiner diagnosed mild to severe mid- and high-frequency sensorineural hearing loss in the veteran's right ear and mild to moderately severe mid- and high-frequency sensorineural hearing loss in his left ear. Although the examiner noted that he had reviewed the veteran's claims folder, he also stated at the conclusion of the examination that, without "detailed audiometric records from when this veteran was discharged from the military, . . . [he, the examining audiologist could not] assess the relationship between . . . [the veteran's hearing loss] and his military noise exposure . . . [with]out resorting to mere speculation." According to an August 2007 private medical report, a January 2004 audiological evaluation had demonstrated normal sloping to moderate hearing loss bilaterally, and an audiological examination completed earlier in August 2007 had shown normal sloping to moderately severe hearing loss on the right and normal sloping to moderate hearing loss on the left. At the conclusion of the later evaluation in August 2007, the examining physician expressed his opinion that the veteran's "[b]ilateral mid- to high-frequency hearing loss [is] consistent with his history of noise exposure and probably also some degree of presbycusis." In January 2008, a VA Chief of Audiology and Speech Pathology Services who reviewed the veteran's claims folder acknowledged the veteran's normal hearing acuity findings in service and explained that whispered voice testing "is not an accurate assessment of auditory acuity . . . [because it] does not test high frequencies." In addition, she noted that the three post-service audiological evaluations (which were completed in 2003, 2006, and 2007) revealed similar findings of mild to moderate high frequency hearing loss bilaterally. The Chief Audiologist concluded, based on the veteran's in-service noise exposure from helicopters, aircraft, mortar fire, and firearms without ear protection as well as his lack of significant post-service occupational noise exposure, that his "hearing loss . . . [is] due to the noise exposure he had in the military." As the results of the August 2006 VA audiological examination illustrate, the veteran has a bilateral impaired hearing disability for VA compensation benefit purposes. See 38 C.F.R. § 3.385 (2007) (which stipulates that, 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 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). While competent evidence of record does not reflect the presence of such a disability until many years after separation from service, the claims folder contains two medical opinions associating this disorder with the veteran's active military duty. Specifically, although the August 2007 private physician stated that the veteran's hearing loss was "probably . . . [to] some degree" the result of presbycusis, this doctor also believed that the veteran's hearing impairment was "consistent with" his in-service history of noise exposure. Also, the January 2008 VA Chief Audiologist opined that the veteran's current bilateral hearing loss is the result of his in-service noise exposure (including from helicopters, aircraft, mortar fire, and firearms). Rationale for these conclusions includes the lack of ear protection given to the veteran during service as well as the absence of post-service occupational noise exposure. Significantly, the claims folder contains two medical opinions associating the veteran's currently diagnosed bilateral hearing loss with his in-service noise exposure. In considering these favorable conclusions, along with the August 2007 private physician's opinion that the veteran's age may have also played some role in his development of hearing loss and the August 2006 VA examiner's inability to render an etiological opinion with resort to mere speculation, the Board finds that competent evidence of record supports the grant of service connection for a bilateral impaired hearing disability for VA compensation benefit purposes. B. Tinnitus Service medical records are negative for complaints of, treatment for, or findings of tinnitus. According to post-service medical records, at the August 2006 VA audiological examination, the veteran reported constant bilateral ringing in his ears since 1970, described in-service noise exposure from aircrafts and artillery fire, and denied occupational and recreational noise exposure. The examiner diagnosed bilateral tinnitus but was unable to assess the relationship between this disorder and the veteran's military noise exposure without resort to mere speculation due to the lack of "detailed audiometric records from when this veteran was discharged from the military." At the private audiological evaluation completed in August 2007, the veteran reported continued tinnitus. In January 2008, the VA Chief Audiologist concluded that the veteran's tinnitus was "due to the noise exposure he had in the military." In support of this conclusion, the medical professional referenced the veteran's in-service noise exposure (including from aircrafts, helicopters, mortar fire, and firearms) without ear protection as well as his lack of significant post-service noise exposure as an accountant. Significantly, the claims folder contains no competent evidence refuting the January 2008 medical opinion. [The August 2006 VA examiner simply concluded that he was unable to express an opinion regarding the etiology of the veteran's bilateral tinnitus "[with]out resorting to mere speculation."] As such, the Board finds that competent evidence of record supports the grant of service connection for bilateral tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs