Citation Nr: 1122184 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-43 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1944 to May 1946. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Nashville, Tennessee, that denied the benefits sought on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is shown to be etiologically related to his active military service. 2. The Veteran's current tinnitus is shown to be etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). However, continuity of symptoms is required where a disorder in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). Taking the first element of service connection, a current bilateral hearing loss diagnosis has been established. An August 2002 VA outpatient audiological treatment record diagnoses the Veteran with "mild sloping to moderately-severe high sensorineural hearing loss." In regards to a current tinnitus diagnosis, the Veteran has submitted lay statements indicating that he currently has tinnitus. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). By its very nature, tinnitus is inherently subjective, and thus the Veteran is competent to attest to having it, even as a layman. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). In regards to an in-service incurrence, the Board notes that there are no service treatment records (STRs) available to document any in-service injury or treatment. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the BVA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule in a case where the STRs are presumed destroyed). However, the Veteran's DD-214 confirms that his military occupational specialty (MOS) was Rifleman, and he received the Combat Infantryman Badge (CIB). Hence, the Board concedes based on the Veteran's MOS and CIB that he was exposed to loud noise during his active military service. In regards to the third element of service connection, there is a nexus opinion of record linking the Veteran's bilateral hearing loss and tinnitus to his active military service. Specifically, upon a request by the Board, a VA audiologist reviewed the Veteran's claims file in February 2011 and determined that it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus are casually related to his military noise exposure. The examiner commented that the Veteran's high frequency sensorineural hearing loss and tinnitus may have various causes, that those possibilities had been considered, but that it was at least as likely as not that tinnitus and bilateral hearing loss are related to the Veteran's military noise exposure. His noise exposure is documented in the available service records and show that the Veteran received a combat Infantryman Badge, and his service in various areas in Europe as a rifleman. The claims file does not contain any negative nexus opinions. The Veteran has never been afforded a VA examination for his claims. The Board finds that the evidence currently of record is sufficient to decide the Veteran's claims on the merits, and therefore the Veteran does not need to be afforded a VA examination. Therefore, the positive evidence of record, combined with the Veteran's lay statements regarding the reported date of onset of his current bilateral hearing loss and tinnitus, persuades the Board that the Veteran's current bilateral hearing loss and tinnitus are, in fact, related to his active military service. As such, the claims are granted. Notice and Assistance On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This law 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. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from adjudicating the Veteran's claims for service connection. This is so because the Board is taking action favorable to the Veteran by granting service connection for the claims on appeal. Thus, a decision at this point poses no risk of prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER The claim for service connection for bilateral hearing loss is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. The claim for service connection for tinnitus is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs