Citation Nr: 1308672	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  12-31 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.



ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel








INTRODUCTION

The appellant is a Veteran who served on active duty from August 1972 to August 1976.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO).  In February 2013, the Board sought a Veterans Health Administration (VHA) medical expert advisory opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus.


FINDINGS OF FACT

1.  The evidence reasonably establishes that the Veteran has bilateral hearing loss that is related to noise trauma in service.

2.  The evidence reasonably establishes that the Veteran's tinnitus is related to noise trauma in service.


CONCLUSION OF LAW

1.  Service connection for bilateral hearing loss is warranted.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  Service connection for tinnitus is warranted.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. 	Veterans Claims Assistance Act of 2000 (VCAA).

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to this claim.  Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. 

      B.	Factual Background 

The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system) (There are currently no pertinent records in Virtual VA that are not in the claims file), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's DD Form-214 reflects that his military occupational specialty (MOS) in service was helicopter crew chief/helicopter mechanic (and his exposure to hazardous levels of noise in service is not in dispute).  
      
The only available audiometry in the Veteran's service treatment records (STRs) is from his June 1969 entrance examination, when puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
-5
X
5
LEFT
15
5
-5
X 
5

Exhaustive attempts to locate his service separation examination report proved fruitless.  

On July 2011 VA audiological evaluation, audiometry revealed that puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
45
LEFT
15
20
20
35
50

The diagnoses were bilateral high frequency sensorineural hearing loss and tinnitus.  The examiner noted that the onset of the Veteran's hearing loss and tinnitus occurred several years after service, and indicated that since the Veteran's hearing at separation was unknown and undocumented, an opinion could not be made regarding the etiology of his hearing loss and tinnitus without resorting to speculation.  

The Veteran submitted two lay statements in support of his claim.  One, from his adult son, states that the Veteran has complained of a ringing sensation in his ears, and has been observed to have trouble hearing, rubbing his ears in discomfort, losing his balance and appearing disoriented since the 1990's.  The second, dated in May 2011, from his current wife, states that he has had hearing loss, vertigo and tinnitus the entire six years she has known him.  In addition, the Veteran submitted treatise evidence (discussed below) from the Naval Research Advisory Committee.  As the opinion by the VA examiner was deemed inadequate, the Board sought a VHA medical expert advisory opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus.

The VHA consulting expert noted that the Veteran had worked around helicopters, jets, and small arms fire during service and did not have post-service occupational or recreational noise exposure, and that his current hearing loss is consistent with impairment from noise trauma.  Accordingly, the examiner found that the Veteran's current bilateral hearing loss (along with tinnitus) is related to the noise trauma in service.  The expert observed that there was no factual evidence in the record that contradicted the Veteran's accounts regarding onset of the disabilities.    

C.	Legal Criteria and Analysis

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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).

In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Hearing loss disability is defined by regulation.  For the purpose of applying the laws administered by VA, 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 thresholds 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.  38 C.F.R. § 3.385.

The Veteran asserts that he was found to have a 15 percent hearing loss on service separation examination in August 1976; he asserts he had 800+ hours of flying time and exposure to helicopter noise as a crew chief.  He claims that his hearing acuity has slowly decreased since 1976, and that he now has chronic ringing in his ears.  He has submitted textual evidence indicating that the type of acoustic trauma he was exposed to as a helicopter crew chief/mechanic causes noise induced hearing loss with a delayed or gradual onset.  He denies any significant post-service noise exposure.  

It is not in dispute that the Veteran has a bilateral hearing loss disability by VA standards (as defined in 38 C.F.R. § 3.385), as such was shown on July 2011 VA examination.  Notably, tinnitus is a disability eminently capable of lay observation (by the person experiencing it).  The Board finds no reason to question the Veteran's reports.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Based on his duties in service as a helicopter crew chief, it may also reasonably be conceded that the Veteran was exposed to hazardous levels of noise in service.  What remains necessary to establish service connection for bilateral hearing loss and tinnitus is that there must be competent evidence of a nexus between the current hearing loss and tinnitus and service/noise trauma therein.  

The Board notes that the July 2011 VA examiner's opinion found that there was insufficient information available to render an opinion regarding the etiology of the Veteran's hearing loss and tinnitus without resorting to speculation.  This, in essence, is a "non-opinion," and is neither positive nor negative evidence.  See Fagan v. Shinseki, 573 F.3d 1282 (Fed Cir. 2009).  

The only competent (medical) evidence that adequately addresses the matter of a nexus between the Veteran's hearing loss and tinnitus and his service is the opinion of the VHA expert consulted by the Board.

The VHA expert opined that the Veteran's hearing loss and tinnitus are at least as likely as not related to noise trauma in service.  The expert cited to the configuration of the hearing loss being consistent with noise induced hearing loss, and noted that the Veteran had no postservice noise trauma and that there is nothing in the record that contradicts the Veteran's accounts.

The Board finds no reason to question the VHA opinion provider's expertise.  The opinion is supported by a thorough explanation of rationale.  It is probative evidence that supports the Veteran's claim.  As there is no probative evidence to the contrary, the opinion is persuasive.  Accordingly, all requirements for establishing service connection for the Veteran's hearing loss and tinnitus are met, and service connection for bilateral hearing loss and tinnitus is warranted.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs