Citation Nr: 1308264 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-40 540 ) 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: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from October 1945 to June 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In January 2013, the Board requested a Veterans Health Administration (VHA) opinion in connection with the appeal. While the Veteran has not been provided with a copy of the subsequent February 2013 VHA opinion, the Board finds that he is not prejudiced by this fact given the fully favorable decision below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Competent and probative evidence of record demonstrates that the Veteran's bilateral hearing loss is at least as likely as not related to his military service. 2. Competent and probative evidence of record demonstrates that the Veteran has tinnitus that results from his military service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The requirements for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the fully favorable decisions contained herein, the Board finds that no further discussion of the VCAA provisions is required. The Claims The Veteran and his representative contend that the claimant's bilateral hearing loss and tinnitus were caused by the claimant's in-service work as a radar-equipment foreman, an aircraft mechanic, and fire control technician. 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). 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). With hearing loss claims, VA may only find hearing loss to be a disability 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 are less than 94 percent. 38 C.F.R. § 3.385. In adjudicating the claims, the Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As an initial matter, the Board notes that the March 2010 VA examination revealed findings consistent with hearing loss disability pursuant to 38 C.F.R. § 3.385. Additionally, the VA examiner diagnosed bilateral hearing loss as well as tinnitus. Thus, the requirement pertaining to a current disability has been met in this case. See 38 C.F.R. § 3.303(a). As to evidence of an in-service incurrence, the Veteran's DD Form 214 confirms that while in service he held several military occupational specialties that included work as a radar-equipment foreman, an aircraft mechanic, and fire control technician. Furthermore, the Board finds that the Veteran is competent to report on having trouble hearing people talk and ringing in his ears during service. Given the Veteran's occupational specialties, the Board concedes that he had significant noise exposure during service. Accordingly, the Board also finds that the record contains competent and credible evidence of an in-service event. Id. Thus, the question in this case turns on whether the Veteran's current disabilities are related to the events in service. The Board notes that the March 2010 VA examiner opined that she could not resolve the question as to the relationship between the claimed disabilities and service without regard to speculation. The examiner thereafter stated that there is little evidence to show that hearing loss and tinnitus began during service. The examiner thereafter discussed the Veteran's noise exposure including the fact that the appellant claimed that his ears would ring and "buzz" for several hours after listening to the engines for extended periods and stated that his hearing seemed to fluctuate following these duties. The examiner indicated that fluctuating hearing is a "classic description of symptoms related to a temporary threshold shift." Later in the examination, the Veteran reported he first noticed the constant cricket sounding tinnitus within the last couple of years. He also reported that after flying the C-planes for 12-14 hours at a time his ears would start to rush, sounding like the engine noises he was exposed to during his shift. After 3-4 hours, the low rushing noise would fade away, until he was on shift again. The examiner also provided reference to research studies. The Board notes, however, that the examiner stated the Veteran was exposed to loud post-service noise while riveting for work. The Veteran has vehemently denied that this activity occurred following service. Rather, he credibly stated he worked as an engineer with circuit boards for 24 years after service and that the only riveting activity he has done was during pre-service employment as a teenager. Thus, it appears the VA examiner's opinion relied on an erroneous fact (i.e., post-service riveting) as a possible cause of his current hearing loss. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). On the other hand, in the February 2013 VHA the specialist opined, after a review of the record on appeal, that the Veteran's current bilateral hearing loss and tinnitus are at least as likely as not related to his military service. In support of this opinion, the specialist cited to the fact that the whispered voice testing that the Veteran had while on active duty has since been deemed invalid; the audiological examination he had at separation in June 1966 is not a valid indicator of whether he sustained noise-induced hearing loss and/or tinnitus while on active duty because it did not test his hearing acuity at the 3000 to 6000 Hertz range; the Board had conceded that the Veteran's military occupational specialties as a radar-equipment foreman, an aircraft mechanic, and fire control technician all had a high probability of hazardous noise exposure and hazardous noise exposure is a known cause of hearing loss and tinnitus; and the claimant provided competent and credible lay evidence of in-service incurrence of observable symptoms of both hearing loss and tinnitus. The Board finds that the February 2012 VHA opinion is highly probative as it included a well reasoned opinion consistent with the facts of the case, and took into account the credible lay assertions of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Regarding the claim for tinnitus, the Board acknowledges the opinion of the March 2010 VA examiner that the question could not be resolved with resort to mere speculation, noting that the Veteran reported delayed onset tinnitus. However, in the Veteran's report to that examiner, the Veteran credibly stated that he experienced ringing, buzzing, and rushing sounds in his ears during service after listening to airplane engines or flying in planes for long hours. The Veteran is competent to describe such symptoms. The February 2013 VHA specialist acknowledged the Veteran's report in the record of tinnitus occurring during active duty and that such lay assertion provides indirect evidence of tinnitus during active service. The specialist opined that it was at least as likely as not that tinnitus is related to the Veteran's military noise exposure. Such opinion is supported by the evidence of record and his accorded great probative weight. Accordingly, the Board finds that the record shows medical evidence of current disabilities (i.e., his bilateral hearing loss and tinnitus), competent and credible evidence of an in-service event (i.e., significant noise exposure during service), and medical evidence establishing a link between the current disabilities and military service. 38 C.F.R. § 3.303(a); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that the preponderance of the evidence supports a grant of service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs