Citation Nr: 1119594 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 09-32 219 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from May 1961 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the above-referenced RO. FINDINGS OF FACT 1. Bilateral hearing loss is reasonably shown to have had its origin during the Veteran's active service. 2. Tinnitus is reasonably shown to have had its origin during the Veteran's active duty. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was incurred during his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). 2. Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). The VCAA applies in the instant case. However, the Board's grant of service connection for bilateral hearing loss and tinnitus herein represents a complete grant of the benefits sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran contends that he has hearing loss and tinnitus that are directly related to excessive noise exposure during service. Specifically, he asserts that he was exposed to noise from various aircraft while working on the flight line as well as noise from tools such as air drills, air hammers, and riveting devices. Because both claims involve similar issues and evidence, and as similar legal principles apply, the Board will address them in a common discussion. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was "noted" in service with post-service continuity of the same symptomatology and medical or lay evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In other words, a Veteran can establish continuity of symptomatology in cases where he/she cannot fully establish the in-service and/or nexus elements of service connection discussed above. See also Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 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. Further, the United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels, and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Even if disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. Hensley v. Brown, supra, at 160. After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Turning to the evidence of record, the Board finds that there is no controversy in this case as to whether the Veteran was exposed to noise trauma in service. His DD 214 indicates that he served as an airframe repairman. Therefore, his account of in-service noise exposure is credible and entirely consistent with the circumstances of his service. Thus, the Board concedes the Veteran's exposure to noise in service. Furthermore, on the application form, the Veteran reported the onset of hearing loss and tinnitus since military service. However, neither hearing loss nor tinnitus was present at any time during service, at the time of discharge, or within a year thereafter. Service treatment records (STRs), including the Veteran's separation audiogram conducted in March 1965, are negative for complaints, findings or treatment for hearing loss or tinnitus. There is also no medical evidence suggesting that sensorineural hearing loss was diagnosed within the one-year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309. In fact, there are no pertinent clinical records associated with the claims file until an OSHA (Occupational Safety and Health Administration) Hearing Test Summary which shows the Veteran underwent regular employer-provided hearing tests between 1982 and 2003. The audiogram in June 1982 showed pure tone thresholds for the Veteran's right ear were 20, 20, 15, 30, and 55 decibels at 500, 1000, 2000, 3,000, and 4000 Hz, respectively, and for his left ear at the same frequencies were 5, 20, 15, 30, and 45 decibels, respectively. This audiogram appears to show bilateral hearing loss by VA standards, but does not reflect the method of testing and does not provide the results of any speech recognition scores. Subsequently, in March 2008, the Veteran was referred for examination for the specific purpose of obtaining an opinion as to whether or not his current hearing loss and tinnitus could be related to service. His chief complaint was hearing loss and tinnitus. His noise history included exposure to aircraft noise as a mechanic in the military and after service continued post-service occupational noise exposure as an employee with the airline TWA. The Veteran also complained of bilateral tinnitus, but was not sure of its onset. Rather, he noted that he has had it for years. Pure tone thresholds for the Veteran's right ear were 15, 25, 45, 60, and 75 decibels at 500, 1000, 2000, 3,000, and 4000 Hz, respectively, and for the left ear at the same frequencies were 25, 25, 45, 65, and 75 decibels. Speech audiometry revealed speech recognition ability of 96 percent in both ears. The audiologic test results indicate a normal to severe sensorineural hearing loss in both ears. The examiner concluded the Veteran's hearing loss and tinnitus were less likely as not (less than 50/50 probability) caused by or a result of military-related acoustic trauma. He explained that, while Veteran's MOS likely exposed him to excessive noise, the STRs do not indicate that this had a negative impact on his hearing. All hearing tests in the STRs document normal hearing including his exit examination in 1965. The examiner was also unable to link the onset of tinnitus with the same timeframe as military noise. The examiner also concluded that the Veteran's post-military occupational noise from aircraft engine overhaul had likely contributed to his current degree of hearing loss and tinnitus. In determining whether service connection is warranted for disease or disability, VA must determine 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that there is inconsistent evidence as to whether the Veteran's current hearing loss and tinnitus are related to service. At service discharge in 1965, he was given the opportunity to identify any history or symptoms associated with the claimed in-service acoustic trauma, but did not indicate any pertinent complaints and none are documented. Moreover, there follows a period of almost two decades during which the Veteran did not seek or require any form of treatment or evaluation for hearing loss or tinnitus. In addition, the single medical opinion concluded that they were not related to military service. Nevertheless, the Board is satisfied that the hearing loss diagnosed many years after service cannot be clearly disassociated from his conceded in-service exposure to loud noise. Of particular significance to the Board is the Veteran's conceded in-service noise exposure (as is confirmed by his duties as an airframe repairman) as well as his competent descriptions of hearing problems since service (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Importantly, the March 2008 VA examiner did not address this relevant evidence. Similarly, because service connection for hearing loss is being granted, this fact adds weight to his claim that his tinnitus is also related to service because 'an associated hearing loss is usually present' with tinnitus. The Merck Manual, Sec. 7, Ch. 82. Approach to the Patient with Ear Problems. Consequently, the benefit of the doubt is resolved in the Veteran's favor, and service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs