Citation Nr: 1318631 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-33 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to May 1986. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefits sought on appeal. In October 2010, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. The case was previously before the Board in February 2011, when it was remanded for examination of the Veteran and medical opinions. The requested development has been completed. FINDINGS OF FACT 1. The Veteran had noise exposure during active service. 2. The Veteran has a current hearing loss disability, which a medical opinion links to noise exposure during active service. 3. The Veteran has a current diagnosis of tinnitus. 4. The Veteran's complaints of tinnitus cannot be reasonably disassociated from his noise exposure during service and his service-connected hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 101(16), 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a current "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Other organic diseases of the nervous system may be presumed to have been incurred during active military service if they manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a). M21-1MR III.iv.4.B.12.a. While the evidence shows that the Veteran has a current diagnosis of sensorineural hearing loss, it does not show any diagnosis of hearing loss during service or within the first year after separation from service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran claims entitlement to service connection for hearing loss and tinnitus. He claims that noise exposure during active service caused these disabilities. He testified that he had noise exposure during basic training in the form of the noise of weapons fire during marksmanship training. He further testified that he had noise exposure during his duties serving in a missile artillery unit. He stated that he had ringing in his ears and decreased hearing during service and that he has had progression of these symptoms since. The Veteran's discharge papers, DD 214, reveal that one of his military specialties was as a short range missile crewmember for over 7 years. Accordingly, the Veteran's assertions of noise exposure during such duties are credible. Most of the Veteran's service treatment records are unavailable. VA has only been able to obtain a copy of the Veteran's entry examination report which reveals that his hearing was normal on entry in to service in 1978. In March 2009, a VA audiology Compensation and Pension examination of the Veteran was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 25 30 LEFT 20 25 25 25 25 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The examiner indicated a diagnosis of "very mild high frequency sensorineural hearing loss bilaterally." However, review of these test results does not reveal a current hearing loss disability. See 38 C.F.R. § 3.385. The examiner's medical opinion was that it is not likely that the Veteran's hearing loss and tinnitus were the result of noise exposure during service. This opinion was based upon the Veteran's reports of recent onset of symptoms of hearing loss only three years earlier and tinnitus about 10 years earlier, which were well after he separated from service. Later in March 2009, the Veteran was also seen for a VA outpatient audiology consultation. This time audiological testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 30 30 35 LEFT 20 25 40 35 40 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. These test results reveal a current hearing loss disability. See 38 C.F.R. § 3.385. No etiology opinion was expressed in the treatment records. In March 2011 the most recent VA audiology examination of the Veteran was conducted. The Veteran reported gradual onset of deceased hearing after experiencing noise exposure during service. He reported a gradual onset of symptoms of tinnitus approximately 20 years early, which would be in 1991, about five years after service. Audiological testing revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 30 30 LEFT 25 25 30 25 30 Speech audiometry revealed speech recognition ability of 94 percent in both ears. After review of the claims file, and noting the Veteran's reports of decreased hearing loss following noise exposure during service, and the lack of audiology test results during service, the examiner stated that "it would seem at least as likely as not that the hearing loss was the result of his military duty." The examiner indicated that it was less likely that the tinnitus was the result of military duty, based upon the report of onset approximately 5 years after service. The medical evidence of record reveals that the Veteran has a current bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that Training Letter 10-02 was issued in March 2010 regarding the adjudication of claims for hearing loss. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). In this case, the Veteran is competent to report a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). At the hearing, he testified that he experienced symptoms of "ringing in his ears" after his exposure to load noises during service. The evidence of record reveals that the Veteran has a current hearing loss disability. He had noise exposure during service and the 2011 VA medical opinion links the current hearing loss disability to the military noise exposure. Accordingly, service connection for bilateral hearing loss is warranted. The Director of the VA Compensation and Pension Service also observed in Training Letter 10-02 that sensorineural hearing loss is the most common cause of tinnitus, but commented that the etiology of tinnitus often cannot be identified. Other known causes were listed, including Meniere's disease, a head injury, hypertension, medications, and dental disorders. It was noted that delayed-onset tinnitus must also be considered. In this case, the March 2011 VA examiner stated that tinnitus was not likely as not caused by the Veteran's military noise exposure; however, this was based upon the Veteran's report of onset of symptoms being approximated at 5 years after service. The examiner did not discuss other possible causes, including whether the Veteran's tinnitus may be due to his hearing loss. Moreover, the Veteran was much more specific in his hearing testimony indicating symptoms of tinnitus during service. The record does not reveal that the examiner considered this testimony related to onset of tinnitus when offering the opinion. Based on the Veteran's credible reports of the onset of tinnitus symptoms during service, and the presence of service-connected bilateral sensorineural hearing loss, his current tinnitus cannot be reasonably disassociated from his hearing loss or his in-service noise exposure. Accordingly, service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs