Citation Nr: 1326454 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-30 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from September 1960 to September 1964 and from November 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran was exposed to noise in service. 2. The Veteran has a hearing loss disability for VA purposes as defined by regulation. 3. Resolving doubt in the Veteran's favor, the evidence of record demonstrates a nexus between the Veteran's bilateral hearing loss and his military service. 4. Resolving doubt in the Veteran's favor, the evidence of record demonstrates a nexus between the Veteran's tinnitus and his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claims given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grants of the benefits sought, any error in notice or assistance is harmless. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West); 38 C.F.R. § 3.303(a) (2012). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for bilateral hearing loss and tinnitus have been met. As an initial matter, the evidence establishes a current disability for each claimed disorders during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). With regard to tinnitus, the March 2010 VA examination noted the presence of this disability. With regard to hearing loss, the Board notes that, 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 (2012). In reviewing the March 2010 VA audiology examination results, the above criteria were met. He demonstrated thresholds over 26 decibels for at least three of the frequencies for the right ear and a 45 decibel auditory threshold at 4000 Hertz for the left ear. Moreover, the speech recognition scores were below 94 percent bilaterally. Therefore, because the requirement of a "current disability" is satisfied for both tinnitus and bilateral hearing loss, the first element required for service connection has been established. Turning to the next element, that of in-service incurrence or aggravation of a disease or injury, the record establishes that the Veteran was exposed to loud noises in service. During his time in the Navy, he competently and credibly testified to military noise exposure being near the flight lines of the aircraft carriers on which he was stationed and during general quarter gunnery shooting exercises. In fact, the RO conceded acoustic trauma due to the Veteran's service aboard the aircraft carriers USS Putnam and USS Ticonderoga in the November 2011 statement of the case. Having determined that the Veteran has current diagnoses of hearing loss and tinnitus and that he was exposed to loud noises in service, the Board now turns to the remaining element of service-connection, that of a nexus between the present disability and the in-service noise exposure. The claims file contains two conflicting medical opinions addressing the likelihood of a causal connection between the Veteran's service and his current hearing loss and tinnitus. In this regard, an August 2010 VA examiner opined unfavorably, and a private audiologist opined favorably. In weighing the two opposing medical opinions, the Board notes that the August 2010 VA opinion relied, at least in part, on the Veteran's post-service noise exposure to machinery as a "tool and dime maker." However, despite this history, the Veteran explained that, as a tool maker (tool and die maker), he was not exposed to machinery. He explained that the lathe and mills that he works with in the shop "do not create loud noise or any noise." He further stated that, as far as machinery work, he sends the work out to a machine shop and that he is not a machinist, nor does he work around loud machinery. See November 2011 statement. Thus, it appears that the VA examiner's opinion is based on an inaccurate factual premise. On the other hand, the October 2010 private opinion noted the Veteran's occupation yet acknowledged that the Veteran was "very rarely around any machinery." Given the fact that the private examiner's rationale is most consistent with the history of post-service noise exposure provided by the Veteran, and the Board finds no reason to discount his presentation of occupational noise exposure, the Board finds the positive private opinion to be more probative than the negative VA opinion. In this case, the Board finds no adequate basis to reject the evidence and private medical opinion of record that are favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the third element of a nexus to service has sufficiently been demonstrated by the evidence in this case. Given the diagnoses rendered during the appeal period and the favorable nexus opinion of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. As such, the Veteran's service-connection claims for bilateral hearing loss and tinnitus are granted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs