Citation Nr: 1302116 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-42 362 ) 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 M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and an April 2010 rating decision of the VA RO in St. Louis, based on new evidence, which confirmed and continued the denial of service connection for both issues. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the currently diagnosed bilateral hearing loss is related to military service. 2. Affording the Veteran the benefit of the doubt, the currently diagnosed tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 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. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VA has statutory duties 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 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Service Connection In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, for VA purposes, 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 threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his hearing loss and tinnitus are attributable to noise exposure in the military where he served as a heavy truck driver and was routinely exposed to noise trauma, without ear protection, from 2.5 ton diesel trucks. He states he worked in a coal mine for 26 years, but indicates that hearing protection was mandatory and he was involved in a hearing conservation program. The Veteran denies any recreational noise exposure without ear protection, except from motorcycles. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. His service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss or tinnitus. The Veteran's March 1969 entrance examination noted his ears were normal. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -10 -10 -- 0 LEFT 10 -5 -10 -- 5 The Veteran's March 1971 separation examination noted his ears were normal. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 -- 10 LEFT 0 5 5 -- 10 A July 2009 letter from the Veteran's neurology doctor states that "[the Veteran] has had tinnitus in his ears for a long time, although it seems to be worse over the past 6 months." In September 2009, the Veteran submitted his claim, on which indicated he had experienced bilateral hearing loss and tinnitus since service. The records show that the Veteran first sought treatment for these issues in February 2009, close to four decades after service. On the intake form for a private February 2009 examination, the Veteran indicated that he had been exposed to gunfire and noise during service and that no hearing protection was used. The Veteran also indicated he had no exposure to recreational noise without ear protection, except for motorcycles, and that while he was exposed to noise in his coal mine job, he wore ear protection. The examiner found the Veteran had bilateral hearing loss. The examiner did not provide a nexus opinion. Thereafter, in December 2009, the Veteran underwent a VA audiological examination. The Veteran was diagnosed with moderate to high frequency sensorineural hearing loss bilaterally and tinnitus. The examiner noted the Veteran's in-service noise exposure, but also noted that post-service the Veteran worked a short time at two manufacturing plants, 25 years in coal mines and as a fire fighter for the past three years. The examiner also noted the Veteran denied a history of recreational noise exposure. Following an examination and review of the Veteran's claims file, including service treatment records (STRs), the VA examiner opined that hearing loss and tinnitus were not as least as likely as not related to his military service. In support of the opinion, the VA examiner noted that the Veteran indicated normal hearing at service entrance and separation, denied hearing loss upon his enlistment and separation questionnaires and there are no documented complaints of hearing loss or tinnitus in his records. The examiner further noted that the Veteran denied any hearing problems and only noticed tinnitus for the past 5 years, that is 33 years after separation from service. In May 2010, the Veteran obtained a private audiological opinion. After review of the Veteran's STRs, December 2009 VA examination, and interview of the Veteran, the private doctor found that the Veteran's tinnitus and hearing loss were more likely than not related to his military noise exposure. The Board notes that the Veteran stated during his interview that he experienced ringing in his ears during service. The doctor based the bilateral hearing loss opinion on the Veteran's current hearing loss, his in-service exposure to acoustic trauma, and the "significant amount of decline" in the Veteran's hearing between his military entrance and separation examinations. The doctor also found that the Veteran's tinnitus was at least as likely as not attributed to the same etiology as his hearing loss, i.e. in-service exposure to noise without hearing protection. The Veteran is competent to report on in-service noise exposure, his current symptoms, and the history of those symptoms. While the Veteran stated during his December 2009 VA examination that he only had ringing in his ears for the past five years, he consistently stated in his September 2009 claim and May 2010 private examination, that he has experienced ringing in his ears since service. As the Veteran was consistent in his September 2009 and May 2010 statements, the Board finds him credible with regard to his claim of incurrence of tinnitus in-service and continuity of tinnitus since service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). After review of the evidence, the Board finds that service connection is warranted for tinnitus and hearing loss based on the competent and credible evidence that tinnitus began during, and has existed since service and the competent and credible evidence that the Veteran's hearing loss is causally related to service. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, which was based, in part, on the fact that the there were no documented complaints of hearing loss or tinnitus in the Veteran's service treatment records. The examiner did not address the threshold shift in-service and failed to consider the Veteran's credible statements that he experienced ringing in his ears during service. Thus, the VA examiner's opinion is of limited probative value. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability and tinnitus; that he was exposed to acoustic trauma in service with no hearing protection; that, he experienced a threshold shift in-service, showing a decline in hearing ability; that, while exposed to noise while working in a coal mine after service, he wore ear protection; and, that the May 2010 private medical opinion attributes Veteran's current hearing loss and tinnitus to his history of military noise exposure. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs