Citation Nr: 1324944 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-44 498 ) 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: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from July 1956 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, which, respectively, denied the Veteran's claims of service connection for bilateral hearing loss and tinnitus. The Veteran was scheduled for a February 2011 Board hearing in Washington, D.C. He failed to report for the hearing, and it was rescheduled for May 2011. However, the Veteran's representative withdrew the request for a hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). This matter was previously before the Board in June 2011 and October 2012 at which time it was remanded for additional development. It is now returned to the Board for review. In September 2012, the Veteran's representative submitted medical treatise evidence directly to the Board. It was accompanied by a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 all reasonable doubt in favor of the Veteran, bilateral hearing loss was caused by noise exposure during active service. 2. Resolving all reasonable doubt in favor of the Veteran, tinnitus was caused by noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. The Board notes that the Veteran's service treatment records are unavailable, having been destroyed in a fire at the National Personnel Records Center in 1973. There is a heightened obligation to assist a claimant in the development of a case, a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Nevertheless, in the decision below, the Board grants the claims of service connection for bilateral hearing loss and tinnitus. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 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); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in active service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. The Veteran asserts that he has a bilateral hearing loss and tinnitus due to exposure to acoustic trauma from muzzle blasts on the firing range in basic training during his period of active service in 1956. As noted above, service treatment records are not available and assumed lost in the 1973 fire at the National Personnel Records Center. Numerous unsuccessful attempts have been made to locate service treatment records. Following service, a VA examination report dated in September 2010 shows that audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 70 80 85 LEFT 35 65 85 90 95 Average pure tone thresholds were 70 decibels for the right ear and 83.75 decibels for the left ear. Speech audiometry revealed 80 percent speech discrimination skills for the right ear; and 16 percent speech discrimination skills for the left ear. The examiner reviewed the claims file noting the unavailability of service treatment records. The examiner noted a May 2007 private audiogram revealed mild to severe sensorineural hearing loss of the right ear; and mild to profound sensorineural hearing loss of the left ear. The Veteran also reported tinnitus. A March 2009 VA audiogram revealed mild to severe sensorineural hearing loss, bilaterally, with complaints of constant tinnitus. The Veteran was said to have reported hearing loss beginning in late 1956, when he fired weapons during basic training on the firing line without ear protection. He reported noting hearing loss at that time. He reported seeking treatment for hearing problems at that time. After service he worked as mechanic, machinist, and welder until approximately 10 years ago. He reported wearing ear protection part of the time. He stated that it wasn't usually that noisy. He also went shooting, but only very occasionally and always wore ear protection. He also did woodwork with ear protection. The examiner noted that she could not resolve the question of whether it was as likely as not that the claimed bilateral hearing loss disorder and tinnitus were due to in-service noise exposure without resorting to mere speculation. The rationale was that the Veteran had high frequency sensorineural hearing loss which exceeded the norms for hearing loss due to aging. He reported noticing hearing loss and tinnitus after firing weapons without ear protection during basic training. However, service treatment records were not available. He also reported post-service noise exposure without valid audiograms during service. In an October 2011 addendum to the examination, the examiner again stated that an opinion could not be rendered without speculating. She explained that the Institute of Medicine 's 2006 report, "Noise and Military Service - Implication for Hearing Loss and Tinnitus," concluded that based upon current knowledge, noise induced hearing loss occurs immediately, and that there is no scientific support for delayed onset noise induced hearing loss. She stated that the Veteran's level of hearing loss "exceeds norms for hearing loss due to aging." However, in addition to his reported in-service noise exposure he also reported post-service occupational noise exposure. The examiner concluded that without in-service audiograms, there was no objective evidence of the presence or absence of hearing loss or tinnitus in service. As a result, to provide an opinion based only on the Veteran's statements would require speculation because there were other potential etiological factors including post- service noise exposure and aging. For this reason she noted that the previous opinion stood. In April 2013, the Board requested an opinion of a medical specialist from the Veterans Health Administration (VHA) regarding whether the Veteran had bilateral hearing loss and tinnitus that started in service or were otherwise related to his active service. For the purposes of the opinion, the medical specialist was to assume that the Veteran had in-service noise exposure. In a July 2013 report, a VA physician opined that it was, "at least as likely as not that at least some portion of his hearing loss and tinnitus is related to loud noise exposures experienced during his military service." The examiner noted the Veteran's claims appeared to have been denied because no records existed to document the presence of hearing loss prior to 2007, and service connection would be speculative based solely on the patient's more recent statements. The available records including the Veteran's Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) reveal that he served as an administrative clerk in the 502 Admin Company during service. The Veteran had no foreign or combat service. The file contains an internet publication entitled "US Army 2nd Armored Division." It notes that from 1950 through 1954, the 502 Aviation Bn, 502 Admin Co was attached to the Division. The file also contains statements from the Veteran, as well as a statement from the Veteran's wife, dated in June 2009 noting he complained of his ears ringing and buzzing while in service. She noted he was seen at the Ft. Hood, Texas, hospital, but they never got any results back from the doctor. In addition, the Veteran's representative submitted a treatise addressing cochlear nerve degeneration after temporary noise induced hearing loss. Here, the medical evidence is at the very least in equipoise. The September 2010 VA examination report and October 2011 addendum are of limited probative value as they could not resolve the question of whether it was as likely as not that the claimed bilateral hearing loss disorder and tinnitus were due to in-service noise exposure without resorting to speculation. The VHA examiner in July 2013, however, concluded that at least some portion of the Veteran's bilateral hearing loss and tinnitus were as likely as not related to loud noise exposure experienced during service. It is clear that the Veteran was exposed to in-service noise, and that his post-service hearing loss meets the standard for hearing loss under 38 C.F.R. § 3.385. Based on credible statements given by the Veteran that he has experienced bilateral hearing loss and tinnitus ever since service, and given the medical expertise of the VHA examiner, the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for bilateral hearing loss and tinnitus is warranted, and the claims will be granted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. ORDER Service connection for a bilateral hearing loss is granted. Service connection for tinnitus is granted. _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs