Citation Nr: 1309916 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-22 058 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1953 to October 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by the RO. The Veteran provided testimony at a February 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note 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. The currently demonstrated bilateral hearing loss disability is shown as likely as not to have had its onset due to the Veteran's exposure to excessive and harmful noise in connection with his duties as a jet engine mechanic during service. 2. The currently demonstrated tinnitus is shown as likely as not to have had its clinical onset due to the Veteran's exposure to excessive and harmful noise in connection with is duties as an jet engine mechanic during service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). To the extent that the action taken below is favorable to the Veteran, further discussion of VCAA is not required at this time. Law and Regulation Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. Merits of the Claim Here, the Veteran asserts that his bilateral hearing loss and tinnitus are the result of harmful noise exposure while working in an aircraft hangar during his period of active duty. Specifically, the Veteran reports being unable to hear for several hours after he was exposed to the loud noise caused by the jet engines. He also indicated that the ringing or buzzing in his ears would occur for days following in-service noise exposure. The Veteran's December 1953 service entrance examination shows normal hearing. There is no separation examination of record. As such, the Board concedes that the Veteran likely suffered from acoustic trauma during his period of service when he worked in close proximity to large aircraft and jet engines. See VBA Fast Letter 10-35 (September 2, 2010) (VA will concede exposure to hazardous noise where a veteran's duty position is shown to have a "Highly Probable" or "Moderate" probability of such exposure). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was jet engine mechanic. Based on his MOS, his exposure to elevated noise levels in service is demonstrated. In addition, a review of the claims folder demonstrates that the Veteran has current hearing loss as defined by 38 C.F.R. § 3.385 in both ears. See March 2008 VA examination report. The Veteran also reports current tinnitus. Id. The remaining question on appeal is whether the evidence of record is at least in equipoise that the Veteran's current bilateral hearing loss and tinnitus are related to his in-service noise exposure. Based on a review of the lay and medical evidence of record, the Board finds that the evidence is in approximate balance as to this question. While a March 2008 VA examiner noted that military noise exposure was conceded, she opined that the Veteran's hearing loss and tinnitus were less likely than not a result of acoustic trauma incurred during military service, based on the history of military noise exposure, the history of civilian occupational noise exposure, and the configuration of the hearing loss. However, during the February 2012 Board hearing, the Veteran testified that although he worked in the construction industry without hearing protection, he performed office work and was not exposed to the loud noises associated with the job. The Board notes that the March 2008 VA examiner's conclusion appears to be based on an incorrect characterization of the Veteran's post-service noise exposure. As a result, the VA examiner's opinion carries a low probative value. See generally, Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Given the Veteran's competent credible testimony of decreased hearing acuity since service, and the onset of tinnitus during service, as would be consistent with his service duties, the evidence of record is in equipoise in showing that the Veteran's bilateral hearing loss and tinnitus are due to a pattern of exposure to hazardous noise levels that began with his duties during his period of service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran's favor, 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. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs