Citation Nr: 1321334 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 10-42 845 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement t to service connection for claimed bilateral hearing loss. 2. Entitlement to service connection for claimed tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1955. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by the RO. The Veteran testified at a March 2013 hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Virtual VA paperless claims processing system. In April 2013, the Board remanded these matters to the RO for further development of the record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. As previously noted, the issue of service connection for a right leg condition, to include as secondary to his left knee disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. 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 currently demonstrated bilateral sensorineural hearing loss is shown as likely as not to be due to the Veteran's exposure to harmful noise levels that began during his period of active service in the Korean Conflict. 2. The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's chronic hearing disability. CONCLUSION OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral sensorineural hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is proximately due to or the result of the now service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of (the Veterans Claims Assistance Act of 2000) VCAA is not required at this time. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Regulation Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. Service connection may 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant must prevail as to his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In this case, the Veteran asserts that his bilateral hearing loss and tinnitus are the result of his in-service exposure to loud noise in connection with his duties. The Veteran asserts that, during this time period while working near the flight line, he never used ear protection because none was available. The Veteran's available service treatment records are negative for any finding referable to hearing loss or tinnitus; however, his service treatment records have been identified as having been involved in the fire at the records storage facility. In connection with a July 1955 separation examination, the clinical evaluation of the Veteran's ears was noted to be normal. His hearing acuity was reported as 15/15, bilaterally, based on whispered voice testing. Significantly, in connection with his Report of Medical History at separation, the Veteran marked "yes" as to whether he had had ear, nose or throat trouble. At a July 2010 VA examination, the Veteran reported having noise exposure to firearms, aircraft engines and the flight lines during service. Audiometric testing revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 40 45 LEFT 25 25 35 40 45 Based on these findings, the examiner diagnosed mild to moderate bilateral, sensorineural hearing loss, which met the standards of 38 C.F.R. § 3.385. The examiner noted the Veteran first complained of hearing loss in 1990 and did not have a current complaint of tinnitus. In a September 2010 addendum, the VA examiner noted that the Veteran denied having complaints of tinnitus. The examiner indicated that she verified this denial by reviewing the audiology questionnaire the Veteran answered. Therefore, she opined that military noise exposure did not cause his claimed tinnitus. During a January 2011 hearing, the Veteran testified that he had noise exposure related to his duties while working about 50 yards from the flight line during service. He stated that he was a clerk, but his other duties included putting gas in and guarding the C-47's and B-17's at his base. He further reported that he did not know the meaning of "tinnitus" and thought the examiner was asking about a condition involving his knee. In a February 2011 addendum opinion, the VA examiner addressed the Veteran's contentions. The examiner opined that, by the time the engine noise had traveled the 50 yards to where the Veteran would have been working, it would have been too soft to cause permanent damage to his hearing. The February 2011 examiner further stated that the Veteran's separation examination showed normal hearing and that he reported on his audiology questionnaire that he first noticed hearing loss in 1990. During his March 2013 hearing, the Veteran testified that he was a clerk, but helped with refueling jet airplanes. At a May 2013 VA examination, audiometric testing revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 5 40 45 LEFT 25 25 40 45 45 The VA examiner diagnosed bilateral sensorineural hearing loss. The examiner conceded the Veteran's exposure to military noise in service, but opined that his hearing loss and tinnitus were not caused by or the result of an event in service. In rendering her opinion, the May 2013 VA examiner relied on the Veteran's July 1955 separation examination showing he had passed the whispered voice test. The VA examiner ruled out a relationship between the Veteran's hearing loss and active service, instead linking the loss to presbycusis at the age of 78 years. The VA examiner found a relationship between the Veteran's tinnitus and his hearing loss, but ruled out a relationship linking the tinnitus to an event or incident of his active service. However, in this case, the Board finds that the examiner did not sufficiently weigh the Veteran's lay assertions that basically related the onset of his hearing problems to the exposure to harmful noise levels during his period of active service. Given that the Veteran's available service treatment records may not be complete, his current assertions generally relating his hearing manifestations to incidents of noise exposure while performing his duties near the flight line in service are found to be credible. There also is no direct information or other lay evidence of record suggesting that his credibility should be questioned. While the July 2010 and May 2013 VA examiners based their opinions on the notation that the Veteran's hearing acuity was measured as being normal by whisper voice test at separation, the Report of Medical History entry made by the Veteran at that time tends to identify an event or incident that would mark the onset of hearing-related problems during service. Thus, to the extent that the aging process and noise exposure have been identified as being potential causes of the claimed hearing loss in this case, the Board finds the evidence to be in relative equipoise in showing that the current hearing loss disability as likely as not is due to the documented exposure to excessive noise levels during his four years of active service. Moreover, as the most recent examination found a definite relationship between the Veteran's tinnitus to the Veteran's hearing loss, the currently demonstrated tinnitus as likely as not is proximately due to or the result of the chronic hearing disability. In resolving all reasonable doubt in the Veteran's favor, service connection of the bilateral hearing loss and tinnitus is warranted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs