Citation Nr: 0813362	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  07-01 548	)	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 disability.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans 
Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Cramp, Counsel

INTRODUCTION

The veteran served on active duty from May 1966 to May 1968. 

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a July 2006 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida.

The veteran presented testimony at a Travel Board hearing 
chaired by the undersigned Veterans Law Judge in December 
2007.  A transcript of the hearing is associated with the 
claims file.


FINDINGS OF FACT

1.  Bilateral hearing loss disability is etiologically 
related to service.

2.  Tinnitus is etiologically related to service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss disability was incurred as a 
result of active duty.  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 as a result of active duty.  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

As a preliminary matter, the Board notes that the veteran has 
been provided all required notice, to include notice 
pertaining to the disability-rating and effective-date 
elements of his claims.  In addition, the evidence currently 
of record is sufficient to substantiate his claims.  
Therefore, no further development is required under 38 
U.S.C.A. §§ 5103, 5103A (West 2002) or 38 C.F.R. § 3.159 
(2007).

Legal Criteria

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110.  Service connection 
may be granted for any disease initially diagnosed after 
service, when all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without medical 
evidence of a current disability, medical or, in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and medical evidence of a 
nexus between the in-service disease or injury and the 
present disease or injury.  See Caluza v. Brown, 7 Vet. App. 
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).  

Satisfactory lay or other evidence that an injury or disease 
was incurred or aggravated in combat will be accepted as 
sufficient proof of service connection if the evidence is 
consistent with the circumstances, conditions or hardships of 
such service even though there is no official record of such 
incurrence or aggravation in such service.  
38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

For the 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, 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.

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see 
also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To 
deny a claim on its merits, the evidence must preponderate 
against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 
(1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

Service records show that the veteran was awarded a combat 
infantryman badge, and therefore his participation in combat 
is conceded for purposes of 38 U.S.C.A. § 1154(b); 38 C.F.R. 
§ 3.304(d).  As the veteran contends that he was exposed to 
various loud sounds during combat service, this is also 
conceded.  

At separation from service, the following puretone thresholds 
were recorded:

Hertz (Hz)	500	1000	2000	3000	4000	 
Right (dB)	5	5	5	X	5	 
Left (dB) 	5	0	10	X	10	 

Thus, the veteran did not have a hearing loss disability at 
separation from service.  Nevertheless, post service 
evidence, including the report of a March 2006 VA audiology 
consultation, a July 2006 VA examination report, and a 
December 2007 private audiology report, confirms that the 
veteran currently has tinnitus and bilateral hearing loss 
disability for VA purposes.  

There are three medical opinions of record addressing the 
etiology of the veteran's claimed disabilities.  A VA opinion 
dated in March 2006 indicates that military noise exposure is 
more likely than not a contributing factor to hearing 
impairment.  A VA opinion dated in July 2006 indicates that 
there is less than a 50/50 probability that bilateral hearing 
loss was caused by or resulted from acoustic trauma caused by 
military noise exposure.  The examiner reasoned that tinnitus 
and hearing loss both had their onset after separation from 
service, and there is no evidence to support a latent onset 
of hearing loss.  A private medical opinion from M.K.C., 
Au.D., dated in November 2007, indicates that bilateral 
hearing loss and tinnitus had their initial onset on or from 
active duty.  The examiner reasoned that the veteran's 
military noise exposure without protection would have 
significantly contributed to his hearing loss and tinnitus.  

The Board finds little to distinguish these opinions in terms 
of reasoning or conflict with other evidence.  All three 
examiners acknowledge that the veteran suffered noise 
exposure in the service.  Although the July 2006 examiner 
based his opinion on the lack of findings consistent with 
hearing loss at separation, the March 2006 and November 2007 
examiners clearly did not find this to be a significant 
factor.  

Here, the evidence for and against the veteran with respect 
to medical nexus has reached the point of approximate 
balance.  In such cases, the benefit of any such doubt is to 
be given to the veteran.  Accordingly, the Board concludes 
that an allowance of the claims of entitlement to service 
connection for bilateral hearing loss disability and tinnitus 
is in order.


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ORDER

Entitlement to service connection for bilateral hearing loss 
disability is granted.

Entitlement to service connection for tinnitus is granted.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs