Citation Nr: 1311242 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 12-09 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from June 1956 to June 1958. This matter came to the Board of Veterans' Appeals (Board) from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2012 for further development. On a form received in February 2013, the Veteran indicated that he waived RO consideration for evidence submitted at a later date. Additional evidence was received in February 2013 and March 2013. 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 Veteran's bilateral hearing loss is causally related to noise exposure during service. 2. The Veteran's tinnitus is causally related to noise exposure during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred during service. 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was incurred during service. 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. For the purposes 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Analysis To begin with, the Board notes that the claims file does include medical reports showing that the Veteran does currently suffer from bilateral hearing loss and tinnitus. The question is whether these disabilities are causally related to his service in the 1950's. A major problem in the instant case is that there are no supporting items of evidence showing hearing loss and/or tinnitus during service, and the Veteran did not file his claim for many years after service. Certain medical records identified by the Veteran are no longer available due to the passage of time, and it appears that the Veteran's service treatment records were destroyed at the 1973 fire at the National Personnel Records Center. A negative VA opinion was obtained after an examination in September 2012 (with an October 2012 addendum). The examiner noted that the record showed no reports of hearing loss and/or tinnitus until early 2000. However, the Veteran subsequently submitted a copy of a June 1982 letter from Robert M. Johnson, Ph.D. to the effect that the Veteran was seen at that time for complaints of tinnitus. Dr. Johnson stated that the Veteran told him that he had experienced tinnitus for many years, first noting the problem in 1956 when firing the M-1 rifle. The Board believes that significant probative weight can be afforded this 1982 letter since it appears to document history reported by the Veteran during the course of seeking medical care some 20 years prior to filing his claim for benefits. Financial gain can therefore be ruled out as a motive. The Veteran's statements to medical care providers (although many years after service) have been consistent. The only fact that the Board can find which might arguably diminish the Veteran's credibility is the passage of time, and the Board declines to find that the passage of time alone is sufficient to render the Veteran's statements not credible. With regard to competency, the Veteran has reported medical school training. The Veteran has also recently submitted an affidavit from an individual who was married to the Veteran from September 1955 to February 1970. This individual stated that the Veteran complained to her after basic training of ringing in the ears and diminished hearing. The Veteran's service records do show that he was married when he entered service. After reviewing the totality of the evidence, the Board is unable to find that the preponderance of the evidence is against the claims. There appears to be at least a balance of the positive evidence with the negative. Accordingly, the Board finds that service connection is warranted for bilateral hearing loss and tinnitus. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in August 2010, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grants of service connection. ORDER Entitlement to service connection for bilateral hearing loss is warranted. Entitlement to service connection for tinnitus is warranted. The appeal is granted as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs