Citation Nr: 1320866 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-17 188 ) 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 Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for bilateral hearing loss and tinnitus. In June 2012, the Veteran testified before an Acting Veterans Law Judge (AVLJ) at the RO. A transcript of the hearing is of record. The Board remanded the case for further action by the originating agency in March 2013. The case has now returned to the Board for further appellate action. In a February 2013 letter, the Veteran was informed that the AVLJ who conducted the June 2012 hearing was no longer employed by the Board. He was provided the opportunity to request a second hearing in accordance with 38 C.F.R. § 20.717 (2012), and responded that he wished to appear at another hearing. The hearing was scheduled for June 7, 2013, but in a May 2013 statement, the Veteran cancelled the hearing and asked that the case go directly to the Board for a decision. Therefore, the Board will proceed with an adjudication of the claims on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is etiologically related to noise exposure during active duty service. 2. The Veteran's bilateral tinnitus is etiologically related to noise exposure during active duty service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Service connection for bilateral tinnitus is warranted. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus as they were incurred due to an incident of acoustic trauma during active duty service. He testified in June 2012 that he received an injury to his ears while serving aboard the USS CARPELLOTTI in 1957 when he was present on deck during the firing of the large five inch cannon. He experienced ringing in his ears that has been present since that time and a temporary loss of hearing. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The record establishes the presence of current disabilities. Private audiological examinations conducted in October 2006 and February 2010 showed a bilateral hearing loss disability for VA purposes in accordance with 38 C.F.R. § 3.385. The Veteran's private audiologist also diagnosed tinnitus on a February 2010 medical opinion report. Service treatment records are negative for evidence of complaints or treatment related to hearing loss or tinnitus; however, there is no indication that the Veteran's hearing was ever tested during his active duty service. The February 1959 separation examination did not include an audiogram and only a whisper test was performed. Although service records do not document any problems with the Veteran's hearing, he has reported exposure to acoustic trauma. He testified in June 2012 that he was present on deck when the large cannon aboard the USS CARPELLOTTI was fired during maneuvers in 1957. The Veteran reported experiencing a temporary loss of hearing and ringing in his ears. He sought treatment in the ship's sick bay, but was told nothing could be done. The Veteran is competent to describe injuries incurred during service, such as acoustic trauma, and service records document that he served aboard the USS CARPELLOTI from November 1956 to at least November 1957. The record also contains a December 2009 statement from a fellow serviceman who remembered the Veteran seeking treatment for ear pain during active duty. Resolving all reasonable doubt in his favor, the Board finds that the first two elements of service connection-a current disability and in-service injury-are demonstrated. The Board also finds that the competent evidence of record weighs in favor of a nexus between the Veteran's bilateral hearing loss and tinnitus and active duty service. In October 2008, an audiologist at the Bay Pines VA Medical Center (VAMC) provided an opinion in support of the claims, finding that the Veteran's military noise exposure was more likely as not a contributing factor in his hearing impairment. The Veteran's private audiologist also provided an opinion weighing in favor of the claims in February 2010. After diagnosing bilateral hearing loss and tinnitus, the private audiologist concluded that the Veteran's disabilities were at least as likely as not caused by his military acoustic trauma. The audiologist further noted that a notch in the Veteran's hearing at 4000 Hertz (Hz) was consistent with noise induced hearing loss. These opinions were based on the Veteran's reports of noise exposure during service. The Board finds that these reports are credible and the VA and private medical opinions are therefore considered probative evidence of a link between service and the claimed disabilities. Thus, all three elements necessary for service connection for bilateral hearing loss and tinnitus are present in this case and service connection is granted for the claimed disabilities. The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to grant the claims. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs