Citation Nr: 1319769 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-13 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from November 1956 to August 1958. These appeals to the Board of Veterans' Appeals (Board) arose from a May 2011 rating decision issued by the Muskogee, Oklahoma RO which denied the Veteran's claims for service connection for bilateral hearing loss and tinnitus. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claims on appeal. In April 2013, the Veteran testified before the undersigned at a hearing. A hearing transcript has been associated with the claims file. 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. Resolving reasonable doubt in favor of the Veteran, the Veteran's sensorineural bilateral hearing loss is etiologically related to in-service military noise exposure. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's tinnitus is etiologically related to in-service military noise exposure. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and an organic disease of the nervous system becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). 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; 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 (2012). Analysis The National Personnel Records Center (NPRC) reported in May 2011 that the Veteran's service treatment records were "fire-related," and therefore, presumed to have been destroyed in the fire that occurred at the NPRC in 1973. In cases where service records are missing or presumed destroyed, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). At the hearing, the Veteran confirmed that he was a medic in the Army. He testified that he was assigned to a training unit in which he participated in field operations at San Antonio, Texas or Fort Sam Houston at Camp Bullis. He worked with evacuations to train 2nd lieutenants to be medics under battlefield conditions. He particularly recalled an incident in which a grenade went off during training; he experienced tinnitus ever since the incident. He did not wear hearing protection during the helicopter evacuations, and he performed such operations continuously for two years. The Veteran's DD Form 214 shows that his military occupational specialty was a Medical Corpsman. The Veteran is competent to report on factual matters of which he has first-hand knowledge (noise exposure), and his reports are credible in the absence of any evidence to the contrary. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In an October 2011 letter, audiologist M.W. reported that audiometric testing revealed bilateral, mild to moderate to severe to profound, sensorineural hearing loss and that the Veteran complained of constant tinnitus bilaterally. The attached audiogram contains uninterpreted graphic representations of audiometric data, which the Board as fact finder may interpret. See Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, at *3 (Vet. App. Oct. 28, 2010) (unpublished single-judge disposition) (noting that in Kelly v. Brown, 7 Vet. App. 471 (1995), the Court determined that it could not interpret the results of an audiograph because interpretation required a factual finding, which was not the role of the Court in the first instance; the Board, however, was empowered to make factual findings in the first instance); see also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential decision may be cited for any persuasiveness or reasoning it contains). The audiogram shows the Veteran has bilateral impaired hearing for VA purposes. M.W. further reported that the Veteran related that during service he served as a medical corpsman with a helicopter evacuation medic detachment assigned to infantry and artillery units. M.W. noted that the Veteran's DD Form 214 confirmed the Veteran's military specialty of medical corpsman. The Veteran reported that he was exposed to excessive noise from helicopters, 105 mm and 155 mm Howitzers, 30 caliber and 50 caliber machine guns, M-1 rifles, a grenade explosion in training, and other weapons fire. Post-service, the Veteran reported that he worked as an educator and coach for 30 years without the need for ear protection and he had no hobby or recreational activities that included excessive noise. (The Veteran's DD Form 214 shows that he had attended college for four years.) M.W. concluded that the Veteran's bilateral hearing loss and constant tinnitus were at least as likely as not related to his military experience as a medical corpsman with a helicopter evacuation medic detachment. M.W. provided the rational that exposure to excessive noise from helicopters, 105 mm and 155 mm Howitzers, 30 caliber and 50 caliber machine guns, M-1 rifles, a grenade explosion in training and other military weapons fire result in acoustic trauma and tinnitus. As noted above, the Veteran's service treatment records are missing through no fault of the Veteran. Significantly, any hearing tests, including audiograms, if conducted during the Veteran's military service are not available. Thus, documented hearing loss and tinnitus during service cannot be shown. Notwithstanding the foregoing, in Hensley v. Brown, 5 Vet. App. 155, 160 (1993), the Court found that although a hearing loss disability is not established at separation from service, it may be established later by submitting evidence that the current disability is causally related to service. Here, the Veteran's bilateral sensorineural hearing loss which meets the criteria of hearing loss set forth in § 3.385 and tinnitus have been linked by competent and credible medical evidence to the Veteran's reports of in-service noise exposure, which the Board found competent and credible. There is no competent evidence to the contrary. Resolving reasonable doubt in favor of the Veteran, service connection for bilateral sensorineural hearing loss and tinnitus is warranted. ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs