Citation Nr: 1301287 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-25 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to November 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and tinnitus. In March 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. The Board's March 2012 remand also referred the issue of entitlement to service connection for ischemic heart disease for development. This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Bilateral hearing loss is etiologically related to active duty service. 2. Bilateral tinnitus is etiologically related to active duty service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Service connection for bilateral tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as the disabilities were incurred due to noise exposure during his service aboard naval vessels in the waters of the Republic of Vietnam. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 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. In evaluating claims of service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The record establishes the presence of bilateral hearing loss and tinnitus for VA purposes. Upon VA examination in May 2008, an audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 30 75 80 LEFT 20 15 35 75 70 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The diagnosis was mild to severe high frequency sensorineural hearing loss bilaterally. The Veteran has also credibly reported the presence of bilateral tinnitus, and he is considered competent to report the presence of symptoms such as ringing in his ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish the presence of observable symptomatology). The Board also finds that an in-service injury is demonstrated. Although service treatment records are negative for findings or complaints related to the Veteran's hearing, an audiogram was not completed at the time of the November 1966 discharge examination. The Veteran has also credibly reported that he experienced acoustic trauma due to various large pieces of machinery and weaponry while serving as an electrician aboard the USS RICHARD S. EDWARDS and USS MULLANY. Personnel records confirm the Veteran's service as an electrician in the official waters of Vietnam in 1964. The Board therefore finds that the record demonstrates an in-service injury due to noise exposure. Additionally, the absence of evidence of in-service hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran submitted a medical opinion in support of his claim for service connection. In December 2009, a private audiologist opined that the Veteran's current hearing loss was most likely the result of excessive noise exposure during active duty service. Although this opinion was not rendered following review of the claims file, the private audiologist was informed of the Veteran's history of in-service noise exposure. The record does contains some evidence against the claim; specifically, the opinion of a VA audiologist who examined the Veteran and reviewed the claims file in May 2008. Thus, there is one medical opinion in support of the claim and one weighing against it. The Board finds that the evidence is at least in equipoise regarding service connection for hearing loss and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the Veteran has reported a credible continuity of tinnitus since service. During a December 2001 audiological consultation at the Danville VA Medical Center (VAMC) the Veteran reported a long history of tinnitus, and he dated the onset of his tinnitus to service at the May 2008 VA examination. All the elements necessary for establishing service connection are therefore met with respect to both claims and service connection for bilateral hearing loss and tinnitus is granted. Finally, the Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs