Citation Nr: 1318178 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 12-02 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from January 1948 to January 1957. This matter comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Board remanded these matters to provide the Veteran with a hearing before a Veterans Law Judge. In April 2013, the Veteran presented testimony before the undersigned Veterans Law Judge. Therefore, the Board may proceed with this appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 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). FINDING OF FACT The Veteran's bilateral hearing loss disability and tinnitus are related to his active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claims. This is so because the Board is taking action favorable to the Veteran on the issues in appellate status and a decision at this point poses no risk of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis The Veteran essentially contends that he has a bilateral hearing loss disability and tinnitus related to service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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) 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). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). 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; 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. Sensorineural hearing loss may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, this presumption does not apply as there is no evidence of compensable hearing loss within a year of service separation. With respect to Hickson element (1), current disability, the record shows that the Veteran currently has a bilateral hearing loss disability and tinnitus as reflected in VA audiological consultation records as well as a May 2008 private treatment record. Hickson element (1) is accordingly met for the claims. With respect to in-service disease, the Board notes that the RO requested the Veteran's service treatment and personnel records from the National Personnel Records Center (NPRC). In April 2009, NPRC advised VA that the Veteran's service records could not be located or did not exist. In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). Turning to an in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service. He contends that during service he was exposed to acoustic trauma from various sources, to include being on the flight deck and doing laundry. The Veteran's Form DD 214 shows that he was a laundry machine mechanic. The Board notes that the Veteran is competent to give evidence about what he experienced; and acoustic trauma, difficulty hearing, and tinnitus are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, the Board finds that the Veteran was exposed to hazardous noise during service. Hickson element (2) is therefore satisfied. With respect to crucial Hickson element (3), nexus, the question presented in this case, i.e., the relationship, if any, between the Veteran's bilateral hearing loss disability and/or tinnitus and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only relevant evidence with respect to this factor is a May 2008 letter from D.G, NBC-HIS, who indicated that the Veteran's bilateral hearing loss and tinnitus were consistent with acoustic trauma. Mr. G opined that these disorders were "more likely than not the result of unprotected noise exposure from [his] military duties in the Navy. . .exposure . . on the flight deck and as a laundry worker." It is noted that the Veteran testified that people noticed he had difficulty hearing after service. He also testified that his post-service work did not involve significant noise exposure. Based on the evidence of record cited herein, the Board concludes that the weight of evidence demonstrates that bilateral hearing loss disability and tinnitus are related to service. Notably, there is no evidence contrary to the Veteran's private clinician's findings. That opinion is consistent with the Veteran's assertions as to noise exposure during service and the evidence of record reflecting his in-service duties. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires, find that Hickson element (3) has been met, and grant service connection for both bilateral hearing loss disability and tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs