Citation Nr: 0814346 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-08 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from January 1949 to January 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. A motion to advance this case on the Board's docket has been granted. See 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. The veteran's military occupational specialty was an antiaircraft artillery automatic weapons crewman is consistent with noise exposure. 2. The medical evidence establishes a medical nexus between the veteran's claimed in-service acoustic trauma and his current diagnoses of bilateral hearing loss and tinnitus. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the veteran's favor, a bilateral hearing loss disability was incurred as a result of active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. With resolution of reasonable doubt in the veteran's favor, tinnitus was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1113, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz 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). In addition, to establish service connection for bilateral hearing loss disability, the veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. See Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Moreover, with certain enumerated disorders such as sensorineural hearing loss, service incurrence may be presumed if the disease is manifested to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Here, the veteran alleges that in-service noise exposure stemming from being in close proximity to artillery rounds caused his current bilateral hearing loss and tinnitus, which began in service but increased in severity as he grew older. Service medical records are negative for complaints of, treatment for, or diagnosis of hearing loss or tinnitus. Further, the Board notes that post-service medical evidence is absent of complaints of hearing loss or tinnitus for many years thereafter. However, his DD Form 214 indicated that his military occupational specialty was an antiaircraft artillery automatic weapons crewman, which corroborates his theory of in-service noise exposure. Private audiology records dated in February 2004 and March 2004 diagnosed the veteran with sensory hearing loss but made no determination as to a nexus with active duty. In April 2005, the veteran underwent a VA audiological examination, in which he was diagnosed with mild to profound bilateral sensorineural hearing loss severe enough to be considered a disability under VA regulations. The examiner expressed his opinion that, based on the veteran's history of repeated acoustic trauma secondary to artillery and antiaircraft fire, it was as likely as not that his current bilateral hearing loss and tinnitus began secondary to military service. The examiner further noted that the veteran's civilian occupation as a hand seamstress did not seem to have contributed to his hearing loss and that there did not seem to be any other medical challenges which may have damaged his hearing. Based on the evidence above, the Board is of the opinion that entitlement to service connection for bilateral hearing loss and tinnitus should be granted. While service medical records do not reveal evidence of a hearing disability, his military occupational specialty as an antiaircraft artillery automatic weapons crewman is consistent with his assertion of acoustic trauma in service. Further, the opinion of the April 2005 VA examiner establishes a medical nexus between the veteran's claimed in- service acoustic trauma and his current symptomatology. As such, and giving him the benefit of the doubt, the Board finds that the claim for service connection for bilateral hearing loss and tinnitus should be granted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Inasmuch as the Board is allowing the benefits sought on appeal, the veteran will not be prejudiced by the Board's decision even if the notice and duty to assist provisions contained in the law have not been completely satisfied. Therefore, no further action is necessary under the mandate of the VCAA. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs