Citation Nr: 1322326 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-00 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his December 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In December 2010, the Veteran was notified that his requested hearing was scheduled for January 27, 2011. However, the Veteran did not appear for his hearing. Instead, the Veteran's service representative submitted written argument on the Veteran's behalf. The Veteran did not request that his hearing be rescheduled or provide good cause for his failure to appear. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, bilateral sensorineural hearing loss had its onset in service. 2. Resolving all reasonable doubt in the Veteran's favor, tinnitus is secondary to his bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that 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). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Additionally, under 38 C.F.R. § 3.310(a), service connection may be granted on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 absence of in-service evidence of hearing loss disability is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 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 has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards and are expressed by the figures in parentheses. Service treatment records show that during a June 1965 pre-induction examination, the Veteran denied hearing loss and bilateral hearing acuity was within normal limits. Specifically, audiometric testing at that time revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) X -5 (0) LEFT -5 (10) -5 (5) -5 (5) X -5 (0) A second audiogram performed shortly before entrance in October 1965 demonstrated the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -5 (5) 0 (10) 0 (5) LEFT 10 (25) -5 (5) -5 (5) -5 (5) -10 (-5) During an August 1967 examination for purposes of separation, the Veteran again denied problems with hearing loss, and audiometric testing at that time revealed the following pure tone decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 5 (15) X 10 (15) LEFT 5 (20) 10 (20) 10 (20) X 5 (10) The service treatment records also contain a separation examination report dated in September 1967 that reflects audiometric findings identical to those noted on the August 1967 examination report. Post-service VA treatment records show that in April 2008, the Veteran was referred for an audiology consultation due to complaints of gradual hearing loss. He reported difficulty hearing, as well as reported bilateral intermittent tinnitus characterized by a high-pitched ringing. He reported his military noise exposure from artillery, firing range practice, and tanks, without use of hearing protection in some instances. He also indicated that while in service, a machine gun exploded near his right ear. The Veteran further reported his post-service history of occupational noise exposure with the use of hearing protection. He was diagnosed with moderate to moderately-severe sensorineural hearing loss. An audiology student provided an opinion, co-signed by an audiologist, that based on the Veteran's report of military noise exposure, and the configuration of his hearing loss, his hearing loss and tinnitus are at least as likely as not caused by or a result of military noise exposure. In a September 2009 written statement, the Veteran asserted that he attempted to obtain the results of his occupational hearing tests over the years, but had been informed that the records were discarded. Nevertheless, he reported that he was told by examiners every time his hearing was tested at work that his hearing was bad. The Veteran was afforded a VA audiological evaluation in October 2010, during which time he complained of hearing loss and tinnitus that had been occurring for years. He again reported his history of military noise exposure, including a machine gun blast next to his right ear, without the use of hearing protection. He also reported his 29-year history of post-service occupational noise exposure at a paper mill with the use of hearing protection. Audiometric testing confirmed bilateral hearing loss for VA purposes. The examiner determined that the Veteran's tinnitus is as likely as not a symptom of the Veteran's hearing loss. Following a review of the claims file, the examiner opined that the Veteran's hearing loss and tinnitus are less likely as not caused by or a result of military noise exposure. In support of the opinion, the examiner noted that there was a threshold shift of 15 decibels at one frequency in each ear between entrance and separation, although hearing was within normal limits at separation. He then stated that, "Due to threshold shift [bilaterally] in the presence of normal hearing" it is less likely as not that hearing loss and tinnitus is due to military noise exposure. The Board finds that the foregoing evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to service. In this regard, a VA audiology student offered a positive opinion, which was co-signed by a VA audiologist. That April 2008 opinion was based on an examination of the Veteran, took into account the Veteran's significant post-service history of noise exposure, and was supported by some degree of rationale, including the Veteran's history of military noise exposure and configuration of his hearing loss. Moreover, while the October 2010 VA examiner offered a negative opinion, the Board notes that the rationale given for the opinion concedes a threshold shift occurred during service. At the very least, given the lack of clarity in the October 2010 VA examiner's opinion, it is insufficient to deny the claim. Therefore, given the evidence outlined above, and after resolving all doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. Even if the Board were to accept the October 2010 negative opinion as adequate, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this matter, the Board is of the opinion that this point has been attained. As such, the Board concludes that service connection for bilateral hearing loss is warranted. Regarding tinnitus, the record is also at least in equipoise as to whether service connection is warranted on a direct basis, as there is one positive April 2008 opinion and one negative October 2010 opinion of record. However, neither opinion is particularly persuasive as to tinnitus, or supported by adequate rationale. Nevertheless, given that service connection has now been established for bilateral hearing loss, and the October 2010 VA examiner concluded that the Veteran's tinnitus is secondary to his bilateral hearing loss, the Board finds that service connection for tinnitus is warranted on a secondary basis. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs