Citation Nr: 1302108	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  10-38 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 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. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty from July 1958 to July 1962.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  


FINDINGS OF FACT

1.  The Veteran's service treatment records show hearing loss in both ears as defined by the pertinent VA regulations, but do not reflect that the Veteran reported experiencing tinnitus or that tinnitus was diagnosed. 

2.  The credible and probative evidence of record relates the Veteran's currently diagnosed tinnitus to his military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  With chronic disease shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  Id.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Hearing Loss

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.  38 C.F.R. § 3.385.

Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI).  In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards.  

The Veteran's service treatment records reflect that on service entrance in July 1958, an audiogram was not conducted, but the whisper test showed normal hearing, with a score of 15/15.  However, the results of an audiogram conducted on service separation in July 1962, converted into ISO-ANSI standards, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
35
35
30
LEFT
35
30
35
35
30

Again, one of the ways VA defines hearing loss as a disability is when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz  are 26 decibels or greater.  Here, the evidence suggests that at service entrance, the Veteran's hearing was normal, but at service separation, his hearing loss measured at least 30 decibels in each ear at each of the five frequencies stated in 38 C.F.R. § 3.385, meeting the VA definition for bilateral hearing loss disability.  Sensorineural hearing loss is a chronic disease pursuant to 38 C.F.R. § 3.309.  

On VA examination in March 2010, puretone thresholds in the relevant frequencies, as well as the speech recognition scores, reflect hearing loss disability for the purposes of 38 C.F.R. § 3.385.  The examiner diagnosed mild sloping to profound sensorineural hearing loss.  The examiner opined that the Veteran's hearing loss was less likely as not related to active service based on the 1962 separation audiogram being within normal limits.  However, the values on that examination had not been converted to ISO-ANSI standards.  

In a May 2010 letter, a private audiologist provided a detailed discussion of the Veteran's reported history and apparently reviewed of the entrance and exit physical examinations.  The audiologist opined that the Veteran's hearing loss is more likely than not related to the Veteran's military noise exposure.  

The record reveals that after converting the values on the separation audiogram to ISO-ANSI standards, such audiogram reflects hearing loss disability pursuant to 38 C.F.R. § 3.385.  Additionally, there are medical opinions both for and against a finding that current hearing loss is related to service.  Upon consideration of the evidence as a whole, and after resolving all doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted.  

Tinnitus

The Veteran seeks service connection for tinnitus.  His Department of Defense Form DD-214, Armed Forces of the United States Report of Transfer of Discharge, reflects that on service separation in July 1962, his military occupational specialty (MOS) was aviation mechanic.  It is during this type of work that the Veteran alleges was exposed to loud noise which caused his tinnitus.  The Board finds the Veteran's statements both credible and consistent with his assigned MOS, as well as the documentation of his job responsibilities in his service treatment and service personnel records.  Exposure to acoustic trauma in service is thus conceded.  

The service treatment records, to include his July 1958 service entrance and service separation examination reports, do not reflect objectively documented evidence of tinnitus during service or at service separation.  However, tinnitus means a noise in the ears, such as ringing, buzzing, roaring, or clicking; it is usually subjective in type.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1914 (30th ed. 2003).  Indeed, tinnitus is a disorder uniquely ascertainable by the senses, and lay assertions as to its existence and duration are especially probative.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The Veteran has asserted during the course of his appeal, to include at his May 2010 private evaluation, in his November 2009 original claim, and various procedural documents thereafter, that his tinnitus began during service, and has continued through the present time.  The Board finds that these statements are competent lay evidence.  See Duenas v. Principi, 18 Vet. App. 512 (2004).  The competent evidence of record also indicates that tinnitus was diagnosed at that May 2010 private evaluation as well as the March 2010 VA examination.

Two opinions are of record as to whether the Veteran's tinnitus is related to his military service.  The March 2010 VA examiner concluded that the Veteran's tinnitus was not related to his military service, based on the Veteran's report that his tinnitus had begun 12 to 15 years ago, or approximately 30 to 33 years after service separation.  Conversely, the opinion stated in the private May 2010 letter concluded that based on the Veteran's report that his tinnitus began in service, and that he was exposed to loud noise in service due to his work responsibilities without effective (other than the circumaural headphones) hearing protection, the tinnitus was more likely than not related to military noise exposure.  

Although that examiner recorded that the Veteran reported his tinnitus only began in the 1990s, the Veteran has consistently asserted in his November 2009 original claim, at his May 2010 private evaluation, and in other procedural documents of record, that his tinnitus began in service.  

Upon review of the record, the Board finds that the competent, credible, and persuasive evidence is in equipoise as to whether the Veteran's tinnitus began in service or is related to service.  When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2012).  Accordingly, service connection for tinnitus is warranted.




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ORDER

Entitlement to service connection for bilateral hearing loss is granted, subject to the applicable regulations concerning the payment of monetary benefits.

Entitlement to service connection for tinnitus is granted, subject to the applicable regulations concerning the payment of monetary benefits.



______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs