Citation Nr: 1313666 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 12-20 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from January 1952 to January 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction over the case was subsequently returned to the RO in Columbia, South Carolina. In March 2013, the Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge. The record was left open for 30 days from the date of the hearing for the Veteran to submit additional evidence. No such evidence has been received by the Board. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. Bilateral hearing loss disability is etiologically related to noise exposure in service. 2. Tinnitus is etiologically related to noise exposure in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes the Veteran has been provided all required notice for the claims on appeal. In addition, the evidence currently of record is sufficient to substantiate these claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012) in regard to these claims. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of his service in the United States Marine Corps during the Korean War. He states that the disabilities are due to his service because he was exposed to loud noise in the performance of his duties during combat. At his Board hearing, the Veteran testified that he was exposed to loud noise from tanks and artillery as he was an assistant tank commander. He also stated that he worked on the firing range for several months during service where he was also exposed to loud noise. The Veteran maintains that he has experienced hearing loss and tinnitus ever since service and that his current bilateral hearing loss and tinnitus are related to the in-service noise exposure. Thus, he contends that service connection is warranted for bilateral hearing loss and tinnitus. The Veteran's service treatment and personnel records do not reference noise exposure, or hearing loss or tinnitus. Hearing was normal during service based on whispered voice and spoken voice tests. Nevertheless, the Veteran's DD 214 documents that he served during the Korean War and he was awarded the Korean Service Medal. Additionally, his specialty number was 1811-M60A1 Tank Crewman. Based on this information and his credible testimony provided at the March 2013 Board hearing, the Veteran's contentions of in-service noise exposure are deemed consistent with the circumstances of his service and thus exposure to loud noise is established by the evidence. The Veteran was afforded a VA audiological examination in July 2011, during which he reported noise exposure from tank and mortar fire during the Korean War. He also reported some post-service noise exposure from farming, welding and hunting. Moreover, the Veteran reported recurrent tinnitus but he was unsure of the onset. The examiner provided diagnoses of bilateral sensorineural hearing loss and tinnitus. Audiometric testing revealed that the Veteran has bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Post-service VA treatment records also show treatment for hearing loss. Thus, the current disability element of both claims is established by the evidence. The question remaining for consideration is whether the Veteran's current disabilities are related to the in-service noise exposure. As to the origin of the Veteran's hearing loss, the July 2011 VA examiner gave the opinion that it is less likely than not that the Veteran's hearing loss and tinnitus were caused by or a result of service noise exposure. The examiner noted that the Veteran passed the whispered voice test at separation from service and that a whispered voice test provides a gross assessment of hearing impairment in the 500-2000 Hertz range. The examiner stated that the Veteran would not now pass the whispered voice test given his current hearing impairment at those frequencies, and that he had a significant history of post-service occupational and recreational noise exposure. The examiner also indicated that the literature does not support delayed onset of hearing loss from noise exposure. The examiner gave a similar opinion for tinnitus indicating that it was most likely related to post-service noise exposure. The VA examiner's opinions tend to weigh against the claims; however, the examiner clearly attributes the Veteran's bilateral hearing loss and tinnitus to noise exposure. Notably, the examiner appeared to put greater emphasis on the severity of the post-service noise exposure and to discount the Veteran's recollection of when his hearing loss and tinnitus first had their onset. Perhaps the Veteran did not adequately inform the examiner of these two aspects of his case. Significantly, at his Board hearing, the Veteran indicated that the post-service noise exposure was less severe than the noise from service and that he had very little noise exposure on the farm. Furthermore, when asked the question of when he first noticed his hearing loss and tinnitus, the Veteran responded that the symptoms indeed began during service when he was exposed to loud noise from tank and mortar fire. The Veteran is competent to testify as to observable symptoms such as hearing difficulty and ringing in the ears, because these symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Board finds the Veteran's testimony as to the onset of his hearing difficulty and tinnitus to be credible and the testimony is accorded significant evidentiary weight. Moreover, the VA examiner's explanation of the opinions concerning the whispered voice test is not particularly persuasive because the whispered voice test does not take into account the higher frequencies of 3000 and 4000 Hertz according to the examiner. Thus, a normal whispered voice test during service would not be inconsistent with hearing loss at higher frequencies or even tinnitus, which it does not test. At the least, this evidence raises a reasonable doubt as to whether the Veteran's current bilateral hearing loss and tinnitus are etiologically related to noise exposure in service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that the two disabilities are in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Thus, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs