Citation Nr: 1310397 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-45 120 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for 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. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1958 to July 1961. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the RO. The Veteran provided testimony at a May 2009 hearing held at the RO before a Decision Review Officer. 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. FINDINGS OF FACT 1. The currently demonstrated bilateral hearing loss disability is shown as likely as not to be due to the Veteran's exposure to excessive and harmful noise levels in connection with his duties as a guided missile launcher crewman during service. 2. The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's exposure to excessive and harmful noise levels in connection with is duties as a guided missile launcher crewman during service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1131, 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. §§ 1131, 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 as a guided missile launcher crewman during his period of active duty. After service, the Veteran reports working in shipping and receiving at a small factory with no exposure to loud noises. At his May 2009 hearing, the Veteran testified that he began to notice left ear hearing loss in the fall of 1961. He further explained that he was examined for diminished hearing and ringing in the ears at a hospital and by a private physician in 1962. The Veteran indicated that the physician and hospital records were no longer available. The Veteran's DD Form 214 shows his military occupational specialty (MOS) was guided missile launcher crewman. It also reflects marksman and sharpshooter awards. At the time the Veteran serviced on active duty, his service department used whisper tests to determine an individual's hearing acuity. The Veteran passed whisper tests at his July 1958 enlistment examination and at May 1961 separation examination. A March 2007 private audiologist noted the Veteran's reports of in-service noise exposure to artillery and missiles. She opined that it was as likely as not that the Veteran's hearing loss and tinnitus was initiated by military exposure and aggravated by presbycusis, occupational and recreational noise exposure. A June 2007 VA examiner diagnosed moderate high frequency sensorineural hearing loss right ear and a mild to moderate mixed loss left ear. The examiner opined that the Veteran's hearing loss and tinnitus was less likely as not caused by his military service. In this regard, the VA examiner noted the Veteran did not serve in combat and that noise exposure does not cause conductive losses or components such as in his left ear. She noted his right ear hearing loss was consistent with age. In July 2008, the same VA examiner reviewed service treatment records review and indicated the prior opinion remained unchanged. In October 2008, the Veteran underwent a private audiological evaluation. The physician indicated that the Veteran's right ear demonstrates hearing loss that was secondary to presbycusis. The audiologist then found an etiologic link between the Veteran's military service and his left ear hearing loss. The record on appeal also includes three lay statements received in May 2009 in support of the Veteran's claim. The Veteran's friend indicated that they met in 1961 after the Veteran was released from active duty. He wrote that the Veteran preferred to drive on group outings because he could hear better with his right ear. In a May 2009 letter, the Veteran's son wrote that he was born in 1963, and from his earliest memory could remember his father's difficulty hearing. He indicated that he had to speak loudly while riding in a car to compensate for the Veteran's left ear hearing loss. Finally, the record includes a letter from the Veteran's former spouse, who wrote that they married while he was in active service. She noted that the Veteran complained of ringing in the left ear and hearing loss after his discharge. She also noted that testing performed in 1962 indicated that the Veteran had hearing loss. While the VA examiner opined that it was less likely than not the hearing loss and tinnitus were caused by his military service, this statement did not fully assess the lay assertions that have been presented in support of the claim. The Veteran is competent to describe the onset of his hearing loss and tinnitus shortly after his discharge. He also is found to be credible in describing decreased hearing acuity and tinnitus since shortly after his separation, as would be consistent with the places, types, and circumstances of his service. See 38 U.S.C.A. § 1154(a). The record contains credible lay statements from the Veteran's friend, son, and former spouse that tend to confirm his statement of having hearing problems and tinnitus for which he sought medical treatment shortly after service. The Federal Circuit has held that 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran has consistently reported that he noticed his hearing loss in the fall of 1961 shortly after his release from active duty and sought treatment for hearing loss and tinnitus in 1962. In addition, the record contains a March 2007 medical opinion that tends to link the current bilateral hearing loss and tinnitus to noise exposure during the Veteran's period of service. Hence, on review of the entire record, the Board finds that the evidence is in relative equipoise in showing that the current hearing loss and tinnitus as likely as not are due to harmful noise exposure incident to duties during his period of active 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