Citation Nr: 1319612 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 12-13 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho 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 ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the United States Army from May 1953 to April 1955. He also had unverified active duty for training and/or inactive duty training service as a member of the U.S. Naval Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Boise, Idaho. 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 was exposed to loud noise (acoustic trauma) while in service. 2. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. The Veteran has a current diagnosis of tinnitus. 4. The Veteran had noise exposure in service and the current bilateral hearing loss and tinnitus were incurred in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claims. Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran seeks service connection for a bilateral hearing loss disorder and tinnitus. He asserts he has bilateral hearing loss and tinnitus as a result of his noise exposure during service, to include exposure to rifle and machine gun fire. He also asserts that during his service in the naval reserves, he was on the deck of a destroyer when a 5-inch gun was fired, resulting in ringing in his ears and temporary hearing loss for approximately a day and a half. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). 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. 38 C.F.R. § 3.303(b) (2012). 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) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. In this case, organic diseases of the nervous system are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (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). Additionally, sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). M21-1MR III.iv.4.B.12.a. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the facts of the present case, the Veteran asserts hearing loss and tinnitus resulting from his service both in the Army and in the Naval Reserve, wherein he has reported exposure to acoustic trauma from heavy naval guns, machine guns, and rifles. His service treatment records are not available, and are presumed to have been destroyed by a fire at the National Personnel Records Center (NPRC). In such cases, VA has a heightened obligation to assist a veteran in the development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Despite the absence of his service treatment records, additional service documents confirm at least part of his reported service history. A discharge certificate indicates he was discharged from the naval reserves in April 1952, indicating his claim of exposure to naval guns is plausible. Additionally, his active duty service in the U.S. Army between May 1953 and April 1955, during which time he served as a military police officer, is also confirmed. During such time, the Veteran has asserted that he was not provided any form of hearing protection. Thus, the Board finds credible the Veteran's assertions that he was exposed to such acoustic trauma as naval guns and frequent rifle and machine gun fire, as these assertions are consistent with the expected circumstances of such service. The Veteran has also stated that during his naval reserve service, he first noticed a "roaring" in his ears, but was told by a service physician that nothing could be done about this symptom. By his account, the Veteran also began to notice a decline in his hearing acuity at that time. The Board finds no evidence within the record suggesting such assertions are not credible. Next, addressing the question of current disability, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. A July 2011 VA audiological examination established diagnoses of both a sensorineural hearing loss disability bilaterally and tinnitus. On VA audiological examination in July 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 70 90 100 LEFT 45 50 75 85 100 The average pure tone threshold was 78dBs in both the right and left ears. Speech audiometry revealed speech recognition ability of 67 percent in the right ear and of 64 percent in the left ear. Tinnitus was also diagnosed at this time. As the Veteran has both a current bilateral hearing loss disability recognized by VA and a current diagnosis of tinnitus, the Board must next consider the etiology of these disorders. On the question of in-service injury or disease, the Board found above that the Veteran was exposed to loud noise (acoustic trauma) to both ears in service. As noted above, his service in both the U.S. Army and Naval Reserves has been confirmed. He has stated he was exposed to loud noises, to include rifles and naval guns, in service. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Because the Board has found that the Veteran's assertions are verified by his available service records, the Board accepts as credible his assertion of exposure to acoustic trauma in service. As noted above, service entrance or separation audiological examinations are not of record. Although the Veteran was not specifically diagnosed with either hearing loss of either ear or tinnitus in active service, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board further finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss disorder or tinnitus is related to exposure to acoustic trauma in service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear or tinnitus in active service, such is not required. The evidence of record demonstrates acoustic trauma in service, and the Veteran has reported both some loss of hearing acuity and tinnitus at the time of service separation. He is both competent and credible to testify regarding such observable symptomatology. The Board notes that, on VA audiological examination in July 2011, the VA examiner opined that the Veteran's current hearing loss and tinnitus were not likely related to his exposure to noise in service, reasoning that neither hearing loss nor tinnitus had not been shown during service or at service separation. The Board finds that the July 2011 VA opinion in regard to the etiology of the Veteran's hearing loss is of limited probative value. The VA examiner made the factually inaccurate assumption that the Veteran's bilateral hearing loss was within normal limits during service and at service separation and that tinnitus was absent, without addressing the Veteran's credible and competent assertions of acoustic trauma in service and his perceived loss of hearing acuity and tinnitus at service separation. A medical opinion based on an inaccurate factual predicate is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board finds the Veteran's assertions of the onset of hearing loss and tinnitus during service and his reports that he has had both hearing loss and tinnitus symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current diagnoses, are sufficient to place in equipoise the question of whether the current bilateral hearing loss disorder and tinnitus were incurred in service and are etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that hearing loss and tinnitus were incurred in service and the criteria for service connection for bilateral hearing loss and tinnitus have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs