Citation Nr: 1326795 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-22 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California 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 WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1968, and September 1970 to September 1972. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied service connection for bilateral hearing loss and tinnitus. The Veteran submitted a Notice of Disagreement (NOD) with this determination in February 2009, and perfected his appeal in June 2009. The Veteran was afforded a Video Conference hearing before the undersigned Veterans Law Judge in June 2013. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. 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. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran's currently diagnosed bilateral hearing loss is related to his active service. 2. The evidence demonstrates that the Veteran's currently diagnosed tinnitus is related to his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Service Connection Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.385, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the 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). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Background The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus due to noise exposure during active military service. Specifically, he alleges that he was exposed to loud noise while he served as an Army cook in the Artillery Unit. He reported that he was never far from the main gun battery, and was exposed to extreme noise of artillery fire almost daily. He also reported numerous times where he was exposed to incoming enemy fire from rockets, artillery, and mortars. The Veteran has a current disability of hearing loss in both ears pursuant to 38 C.F.R. § 3.385. This is demonstrated in the May 2009 VA examination report. The VA examination demonstrated auditory thresholds over 40 decibels in the 3000 and 4000 Hz frequencies, bilaterally. The Veteran's service treatment records are void of documentation of any complaints or clinical findings of hearing loss or tinnitus. The September 1968 separation examination contained audiometric test results, however, the Veteran's hearing was not considered to be disabling under VA regulations at that time. Nevertheless, as noted above, the absence of documented hearing loss while in service is not fatal to a hearing loss claim provided that the Veteran submits evidence of a current disability that is causally related to service. See Ledford, 3 Vet. App. at 89 (1992); Hensley, 5 Vet. App. at 159-160 (1993). The Board observes that the Veteran is competent to state that he experienced noise exposure in service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's service personnel file and DD-214 document that the Veteran served in the Republic of Vietnam during the Vietnam War. The records show that he served as a cook while in Vietnam with the 6th Battalion, 33rd Artillery Unit. History of the 6th Battalion, 33rd Artillery Unit show that the unit was involved in numerous fights, with the first mortal casualties suffered on April 4, 1968, when enemy artillery rounds slammed in the A battery position at CA Lu. Records show five men were wounded and two were killed. Accordingly, the Board concludes that it is likely that the Veteran was exposed to acoustic trauma from gunfire and mortars while serving in Vietnam. The remaining question, therefore, is whether there is medical evidence of a nexus or relationship between the current hearing loss disability and tinnitus, and in-service noise exposure. Private and VA outpatient treatment records show that the Veteran was diagnosed with and treated for bilateral hearing loss and tinnitus. The Veteran was afforded a VA audiological examination in May 2009. The Veteran reported that his hearing loss and tinnitus existed since 1968. Additionally, he reported acoustic trauma due to exposure to 105 mm Howitzers and other loud noises while in Vietnam. His reported in-service duties as a cook, but also noted that he was repeatedly exposed to Howitzer fire. He also did not use any hearing protection. After military service, the Veteran worked on a catering truck for 23 years, and delivered tray and diet changes to patients for 17 years at the VA. He did not report any exposure to loud noise outside of military service. Upon examination, the VA examiner diagnosed the Veteran with bilateral high frequency sensorineural hearing loss and tinnitus. The examiner concluded that the Veteran's hearing loss was not caused by or a result of acoustic trauma during his military service. The examiner further stated that the Veteran's hearing was within normal limits in September 1968, when he was being discharged from military service. Additionally, the Veteran's tinnitus was less likely than not caused by or a result of acoustic trauma during his military service, as the record mentions no complaint of tinnitus by the Veteran upon discharge from military service. Furthermore, the Veteran submitted a June 2013 letter from a private treating physician, with accompanying audiological test results. The physician noted that the results of the Veteran's audiological testing indicated a high frequency sensorineural hearing loss in both ears. This high frequency hearing loss and his complaints of tinnitus were consistent with those hearing losses that are related to noise exposure. This hearing loss could have occurred many years ago. Additionally, the Veteran was afforded a Video Conference Hearing in June 2013. The Veteran's representative noted the 6th Battalion, 3rd Artillery Unit history as sated above. He reported noise exposure in Vietnam from 105 Howitzers that were being fired all the time. He also reported being on guard duty many times. The Veteran noted an instance where a water trailer was blown up, which was really noisy. He also reported loud noise from jets and helicopters. The Veteran also noted grenades going off in bunkers and sniper fire going off by him. He also stated that he did not remember any hearing protection being provided. He reported that he did not have any excessive noise exposure post-service. He first noticed hearing loss right after he got out of service. Additionally, he reported that the ringing in his ears started right away, but eventually got louder. Analysis After a careful review of the evidence, the Board finds that the Veteran's in-service noise exposure, pertinent lay evidence, and the positive nexus opinion provided by the Veteran's private physician, demonstrate that his currently diagnosed bilateral hearing loss and tinnitus are related to his period of active military service. The Board recognizes that the Veteran was not diagnosed with hearing loss or tinnitus in service and that, on his separation examination, the puretone tested was considered normal. However, as noted above, the absence of documented hearing loss while in service is not fatal to a hearing loss claim provided that the Veteran submits evidence of a current disability that is causally related to service. See Ledford, 3 Vet. App. at 89 (1992); Hensley, 5 Vet. App. at 159-160 (1993). In the present case, the Veteran was afforded VA examination in May 2009 to determine the nature and etiology of his bilateral hearing loss and tinnitus. The examiner concluded that the Veteran's hearing loss and tinnitus were not caused by or a result of acoustic trauma during his military service, as his hearing was within normal limits and there were no complaints of tinnitus at discharge. The Board again notes that the absence of in-service evidence of hearing disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385 (2012), is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, it appears that the examiner did not properly consider the Veteran's lay evidence of continuity of symptomatology and in-service noise exposure when offering his opinion as to etiology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of an in-service injury, but instead relied on the service treatment records to provide a negative opinion). Therefore, the Board finds that the VA examiner's opinion is not adequate for rating purposes. Additionally, the record contains a positive nexus opinion pertaining to the Veteran's bilateral hearing loss and tinnitus from a private treating physician. Specifically, the physician noted that the Veteran's bilateral high frequency sensorineural hearing loss and complaints of tinnitus were consistent with those hearing losses that are related to noise exposure. This hearing loss could have occurred many years ago. As testified to and shown throughout the record, the Veteran reported that he had not been exposed to excessive acoustic noise after his discharge from active military service. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's bilateral hearing loss and tinnitus claims. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for bilateral hearing loss and tinnitus are warranted. 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