Citation Nr: 1325430 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 11-32 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1965 to May 1969. He also had subsequent service in the United States Army Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from August 2010 and January 2011 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a November 2010 VA Form 9, the Veteran requested a hearing in Washington, DC. However, in subsequent correspondence, dated December 2012, the Veteran withdrew his request for a hearing in Washington, DC. The Board also notes that, 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 issue on appeal. A review of the record shows that the Veteran reported occasional tinnitus to his private treating physician, Dr. T.L., in March 2011. The RO also specifically asked the November 2010 VA examiner to address the issue of tinnitus at the VA examination, (the Veteran denied tinnitus at that time), but no notice was sent to the Veteran regarding this claim. The issue of entitlement for tinnitus 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 over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Resolving all doubt in favor of the Veteran, bilateral hearing loss is etiologically related to noise exposure during active military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection for hearing loss will therefore be presumed where there is continuity of symptomatology since service. See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims has held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims bilateral hearing loss as a result of his infantry training and Vietnam combat action. VA has conceded noise exposure as a result of military service. The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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 Veteran's service treatment records (STRs) show normal audiological testing upon entry. Testing in October 1965 revealed: Pure tone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 -10 5 - 5 Left Ear 10 0 5 - 10 December 1965 test results revealed an auditory threshold of '0' at 500, 1000, 2000, and 4000 hertz. His test results were then slightly worse in November 1968. Pure tone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 0 10 - 0 Left Ear 0 0 20 - 10 The Veteran's audiology testing revealed further worsening in December 1972 (post-service, but during reserve duty). Pure tone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 10 20 20 20 Left Ear 20 10 30 30 25 While the Veteran's audiology test results within his STRs do not rise to the level of hearing loss as defined by statute, they reveal worsening while in service and in 1972 the test results narrowly missed qualifying as hearing loss for VA purposes. The Veteran was afforded a VA audiology examination in November 2010. The Veteran stated that he had been diagnosed with a bilateral hearing disorder approximately 10 years prior. These records were not associated with the Veteran's file and were not available for the examiner to review. The examiner opined that the onset of the Veteran's hearing loss was at least as likely as not to have occurred post-service because the Veteran's in service audiology testing was within normal limits for rating purposes. The Veteran's dates of active service were incorrect in the examiner's report, although the examiner appears to have reviewed the entire Veteran's claims file. In March 2011 the Veteran was examined by Dr. T.L. who opined that due to the Veteran's history of loud noise exposure during military service and his hearing loss configuration, it was as likely as not that the majority of the patient's hearing loss was caused by exposure to loud noise during military service. Dr. T.L. did not review the Veteran's claims file. In this case, medical evidence shows that the Veteran has a current bilateral hearing loss disorder pursuant to 38 C.F.R. § 3.385. VA has conceded noise exposure during service. The Veteran has also provided a competent, credible medical opinion linking his current bilateral hearing loss to his in service noise exposure. While there are conflicting medical opinions in the file, the Board finds that the opinion of Dr. T.L. was supported by his examination and interview of the Veteran as well as his consideration of the Veteran's history of military and civilian noise exposure. The Board also finds that Dr. T.L. has provided a rationale for his opinion that was at least as in depth as the opinion and rationale of the VA examiner. Although the November 2010 VA examiner had the Veteran's claims file to review and Dr. T.L. did not, this fact is not the determinative factor in assigning probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Further, the Veteran's claims file did not contain complete records for review and the VA examiner incorrectly noted the Veteran's dates of service after review of the file. Additionally, while the VA examiner found that the Veteran's audiology testing remained within normal limits for rating purposes during service, he did not provide an opinion regarding the Veteran's progressive hearing loss symptoms, which did originate in service. Finally, the VA examination report did not contain the Veteran's civilian noise exposure, in contrast to Dr. T.L.'s report. The Board finds Dr. T.L.'s opinion to be more probative, especially in light of VA's concession of noise exposure while in service and the Veteran's STRs which show a progressive worsening in hearing loss symptoms which began while the Veteran was in service. The Board will resolve all doubt in favor of the Veteran and as such, finds that service connection for his bilateral hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).