Citation Nr: 1305976 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-40 789 ) 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 August 1968 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 since service. 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). In January 2009, the Veteran submitted his claim, indicating he began to experience bilateral hearing loss and tinnitus during service. He did not report any treatment for the conditions since service. The Veteran claims his hearing loss and tinnitus are attributable to noise exposure in the military. Although the Veteran served as an administrative specialist with the Air Force, he was exposed to noise trauma, without ear protection, from plane engines and machinery as he spent time on loading docks and at a salvage yard that were located close to the base's runways and worked on the flight line. See Letter from Veteran, July 2010. He also states that during basic training he was exposed to artillery noise at the gun range. See Fee-Based Audiological Examination, August 2009. The Veteran states that post-service he worked in engineering and management and denies any recreational or occupational noise exposure. See VA Audiological Examination, September 2009. The Board finds no reason to doubt the Veteran's lay 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 April 1968 induction examination noted his ears were normal and the Veteran self-reported having no ear trouble. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 -- LEFT 0 0 0 0 0 The Veteran's July 1972 separation examination noted his ears were normal and the Veteran self-reported no hearing loss. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 15 15 LEFT 10 10 10 10 15 The record includes the report of an August 2009 fee-based examination conducted for VA. During this examination, the Veteran indicated he was exposed to gunfire during basic training and to jet and machinery noise without ear protection during his time in the military. The Veteran also indicated he had no exposure to recreational or occupational noise. The Veteran stated that his tinnitus began in September 1968 after attending basic training at a gun range. Following an examination, the examiner opined that the Veteran has moderately severe sensorineural hearing loss in his right ear and severe sensorineural hearing loss in his left ear. The examiner found the Veteran has bilateral and constant tinnitus and that the tinnitus is as likely as not a symptom associated with the Veteran's hearing loss. The examiner opined that the Veteran's hearing loss and tinnitus are at least as likely as not related to military service. In support of the opinion, the examiner noted that prolonged exposure to artillery and machinery noise without hearing protection, such as that experienced by the Veteran during military service, will lead to hearing loss and associated tinnitus. In September 2009, the Veteran underwent a VA audiological examination at which time he reported hearing loss for the "past 30 years," since service. The Veteran was diagnosed with severe high frequency sensorineural hearing loss bilaterally. The examiner noted the Veteran's in-service noise exposure, mostly to jets, and his denial of civilian occupational and recreational noise exposure. The examiner also noted the Veteran's report of constant tinnitus in both ears since his service in the military. Following an examination which showed bilateral hearing loss for VA compensation purposes 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 and denied hearing loss upon his enlistment and separation questionnaires. In June 2010, the VA examiner provided a supplemental audiological opinion. The examiner opined that the Veteran's separation examination revealed his hearing to be within normal limits; therefore, "in the absence of acoustic trauma", it is not as least as likely as not that the Veteran's hearing loss or tinnitus are related to his military service. As the Veteran denied occupational noise exposure, the examiner found the Veteran's hearing loss and tinnitus are most likely the result of aging factors. In August 2010, the VA examiner provided another supplemental opinion. The examiner found that the difference between the Veteran's enlistment and separation audiological exams did not constitute a significant threshold shift in hearing. The examiner opined that the slight change in the Veteran's hearing during service could be due to several reasons including a normal progression of loss, tester variability, the testing environment, the Veteran's motivations at the time of testing, etc. The examiner found that the decline in the Veteran's hearing during service was not significant and thus, not as least as likely as not linked to his noise exposure in the military or his current hearing loss. The Veteran is competent to report on in-service noise exposure, his current symptoms, and the history of those symptoms. The Veteran has consistently stated in his claim and during both examinations that he has experienced ringing in his ears and hearing loss since service. The Board finds the Veteran credible with regard to his claim of incurrence of tinnitus and hearing loss in-service and continuity of tinnitus and hearing loss 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 STRs. Although the examiner addressed the Veteran's decline in hearing acuity during service in the August 2010 supplemental opinion, the examiner erred when finding that there was no threshold shift in-service. The Veteran's STRs clearly show a 15 dB threshold shift at 4000 Hz in the left ear between induction (0 dB) and separation (15 dB). Therefore, for VA purposes, the Veteran did experience a threshold shift during service. Additionally, the VA examiner failed to consider the Veteran's credible statements regarding noise exposure in-service and ringing in his ears beginning in-service. The June 2010 supplemental opinion considered an "absence of acoustic trauma;" however, VA has conceded the Veteran experienced acoustic trauma in service. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss and tinnitus 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, he was not exposed to occupational or recreational noise exposure post-service; and that he asserted hearing loss and tinnitus since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) 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