Citation Nr: 0815108 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-02 790 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from February 1952 to October 1953. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Newark RO. In September 2007, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with his claims file. At the hearing, the veteran submitted additional evidence with a waiver of RO initial consideration. In November 2007, his representative submitted additional evidence to the Board (without a waiver of RO consideration). In light of the determination being made, the Board finds that the veteran is not prejudiced by the Board's initial consideration of this evidence (i.e. without first remanding it to the RO for their first review). Also in November 2007, the Board sought a medical advisory opinion in these matters from the Veterans Health Administration (VHA). The veteran and his representative were advised of the opinion received. At his request, the Board advanced the case on its docket pursuant to 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT The veteran's bilateral hearing loss and tinnitus are shown to be related to his combat noise exposure in service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2007). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case; however, because the benefits sought are being granted, there is no reason to belabor its impact in these matters. II. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. To prevail on the issue of service connection, there must be 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 claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Hearing loss disability is defined by regulation. 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, 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. See 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). III. Analysis As the veteran's service records were apparently destroyed by a fire at the facility storing such records, VA has a heightened duty to assist him in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit- of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The veteran contends that his hearing loss and tinnitus are related to noise exposure in service. His DD Form 214 shows that he served in an infantry unit in Korea during the Korean Conflict, and received a Bronze Star Medal with a "V" (for valor) device. Accordingly, it is shown that he was exposed to the noises inherent to combat. Furthermore, there is ample competent evidence that the veteran currently has hearing loss disability (as defined by regulation) and tinnitus. On August 2005 VA audiological consultation, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 30 35 30 LEFT 30 25 35 40 35 It was also noted that the veteran had tinnitus and that he had six years of military noise exposure and five years of occupational noise exposure as a truck driver. March 2006 VA audiological evaluation (with audiometric studies) confirmed that the veteran has bilateral hearing loss disability and tinnitus. Consequently, what remains necessary for the veteran to establish service connection for his hearing loss and tinnitus is competent evidence of a nexus between his current bilateral hearing loss and tinnitus and his recognized noise exposure in service. On the March 2006 VA audiological evaluation, the audiologist noted that the veteran's postservice occupations had a potential for noise trauma. The examiner opined that without more evidence (i.e., service medical records and private treatment records), an opinion regarding the etiology of the veteran's hearing loss and tinnitus could not be made without resorting to mere speculation or hearsay. A May 2007 letter from a private audiologist noted that the veteran had history (and diagnoses) of hearing loss and tinnitus (first noted in service). In a letter dated in November 2007 a private osteopath indicated that the veteran had hearing loss associated with a whooshing-type tinnitus, at least in part "casually" [sic] related to combat noise exposure in Korea. To resolve the matter of the etiology of the veteran's bilateral hearing loss and tinnitus, the Board sought a VHA advisory opinion from an otolaryngologist. In a February 2008 dated opinion, a Chief of Otolaryngology at a VA Medical Center (and professor at a Medical School) opined that given the veteran's history of noise exposure, his hearing loss was at least as likely as not to have been caused by his combat noise exposure. She opined that the veteran's tinnitus was consistent with his hearing loss and that this too was at least as likely to have been caused by his combat noise exposure. The Board finds that the VHA opinion, secured by the Board and supporting the veteran's claims, is highly probative evidence in the matters at hand. Given the recognized expertise of the opinion provider, references to evidence which reflect familiarity with entire record, and the explanation of the rationale, the Board finds the VHA opinion persuasive. Significantly, there is no competent evidence to the contrary, as the VHA opinion is consistent with the private opinion received, and the March 2006 VA examiner indicated that an opinion could not be offered without resorting to mere speculation or hearsay. Accordingly, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs