Citation Nr: 1313049	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  12-07 229	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel



INTRODUCTION

The Veteran (appellant) served on active duty from April 1941 to December 1945. 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2011 rating decision of the RO in Oakland, California.  The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

The Veteran was scheduled to appear before a travel board hearing at the RO in August 2012.  In an August 2012 memorandum to the RO, the Veteran's representative indicated that the Veteran would be unable to attend the hearing due to health concerns.  The representative did not request rescheduling.

The Board remanded this case in October 2012 for additional development.  The case returns now for appellate consideration.

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 has a current disability of bilateral hearing loss.

2.  The Veteran had some hazardous noise exposure during service.

3.  The Veteran's bilateral hearing loss is related to his in-service noise exposure.

4.  The Veteran has a current disability of bilateral tinnitus.

5.  The Veteran's bilateral tinnitus was caused by his bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The Veteran's bilateral hearing loss was incurred in active service.  38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).

2.  The Veteran's bilateral tinnitus was caused by his service-connected bilateral hearing loss and the criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1101, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Service connection has been granted for both disabilities on appeal, as discussed below.  As such, the Board finds that any error related to the duties to notify or assist is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

Service Connection

The Veteran contends that he has bilateral hearing loss and tinnitus as a result of hazardous noise exposure from flying in aircraft in World War II.  For the reasons that follow, the Board finds that the Veteran's bilateral hearing loss was caused by noise exposure during service and that his bilateral tinnitus was caused by his bilateral hearing loss.  The Board concludes that service connection is warranted for both disabilities. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent and credible 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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In this case, sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).  Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker, 708 F.3d at 1338 (Fed. Cir. 2013).

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).

Service Connection for Bilateral Hearing Loss

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  

On the authorized audiological evaluation in January 2013, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
30
25
40
60
LEFT
60
80
100
100
105+

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and not tested in the left ear.  The Veteran has a hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.

The Veteran has alleged that he had hazardous levels of noise exposure during his active service.  His May 2010 claim is representative.  He stated that he served as an administrative inspector in the Army.  He flew from location to location with high ranking officers.  He sat in the rear of the aircraft close to the engines.  In March 2012, the Veteran submitted an additional statement regarding alleged acoustic trauma in service from airplanes.

The Veteran's service treatment records are lost, presumed destroyed in a 1973 fire at the National Archives.  VA has a heightened duty to explain its findings and conclusions because of the missing records and to carefully consider the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).

The Veteran's service documents show that he was an administrative inspector in the Pacific Theater of World War II for three months.  His unit at separation was the 500th Bomb Group.  His separation qualification record described his administrative inspector duties as supervising and directing administrative work in headquarters in the preparation of correspondence records, forms, reports, and orders.  He also supervised personnel forms, reports, rosters, leaves, furloughs, and discharges.  The Veteran also received basic Air Corps training.  

Lay evidence can be competent and sufficient to report the observer's experiences because this requires only personal knowledge as it comes through the five senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Board finds the lay assertions particularly useful in this matter given that the Veteran's service treatment records are not available for review.  See O'Hare, 1 Vet. App. at 367.  The Veteran is competent to report that he moved with officers on inspections during service.  Moreover, his duty location was in the Pacific Theater, where travel from one location to another in a short amount of time would require the use of aircraft.  He is also competent to report noise from firing weapons during basic training.  

A June 2010 opinion from the Veteran's private audiologist indicated that the Veteran's hearing loss was more likely than not related to his time in the military.  The examiner noted that the Veteran served as an inspector, was around a noisy environment and was also involved in weapons training.  

The Board remanded this case in October 2012 to provide the Veteran with a VA examination in connection with this claim.  The Veteran underwent the VA examination in January 2013.  The Veteran reported a history of noise exposure in service consistent with the above and little noise exposure after service.  The examiner concluded that the Veteran's hearing loss was more likely than not related to his time in the military due to aircraft noise.  

In light of the foregoing, the Board finds that the Veteran has a current bilateral hearing loss disability, had hazardous noise exposure during service, and that his bilateral hearing loss was caused by his in-service noise exposure.  As such, the Board finds that the weight of the competent and probative lay and medical evidence supports the claim and service connection for bilateral hearing loss is granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Service Connection for Bilateral Tinnitus

Having determined that service connection is warranted for bilateral hearing loss, the Board turns to the bilateral tinnitus claim.

Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.  38 C.F.R. § 3.310(b).

The Veteran has been diagnosed as having tinnitus at the January 2013 VA examination and in his June 2010 private audiology report.  No history of the disability was provided at that time.

The January 2013 VA examination report contains an opinion regarding the etiology of his bilateral tinnitus.  The Veteran reported onset of tinnitus three to four years previously.  The examiner indicated that the tinnitus was at least as likely a symptom associated with bilateral hearing loss.  The examiner did not select the opinions that the bilateral tinnitus was caused by or a result of military noise exposure, due to a known etiology (such as traumatic brain injury), less likely than not caused by or a result of military noise exposure, or that a medical etiology opinion could not be provided without resorting to speculation.  

Reading liberally, the Board finds that this opinion supports a finding that the Veteran's bilateral tinnitus has been caused by or is a result of his bilateral hearing loss.  The Veteran's history of tinnitus symptoms was only three to four years long, which does not indicate the presence of symptoms since service.  Direct service connection is not supported by the history.  The VA examiner did not provide an opinion regarding secondary service connection, but was also not asked to provide such an opinion.  Given that the tinnitus was found to be a component of the bilateral hearing loss disability and is of recent onset, the Board finds that the tinnitus is most like a disability secondary to his bilateral hearing loss.  

In light of the foregoing, the Board finds that the Veteran is service-connected for bilateral hearing loss, has a current disability of bilateral tinnitus, and that the bilateral tinnitus has been caused by his service-connected bilateral hearing loss.  Service connection is warranted on a secondary basis.  See 38 C.F.R. § 3.310.  Although the Veteran did not plead a theory of secondary service connection, the evidence is at least in equipoise in favor of the Veteran's bilateral tinnitus claim on that basis.  Consequently, the benefit-of-the-doubt rule applies, and the claim must be granted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted. 

Service connection for bilateral tinnitus is granted.




____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs