Citation Nr: 1327211 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-09 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. During the pendancy of this appeal the Veteran apparently relocated to Kansas. Jurisdiction now resides with the RO in Wichita, Kanasas. FINDING OF FACT The evidence of record shows that the Veteran has bilateral hearing loss and tinnitus that is likely related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303(a), 3.385 (2012). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and to Assist Upon its receipt of a claim for veterans' benefits, VA, under the Veteran's Claims Assistance Act of 2000 (VCAA), must: (1) notify the claimant of the information and evidence not of record necessary to substantiate the claim; and (2) assist the claimant in substantiating the claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). In this case, the Board is granting the Veteran's claims in full. Therefore, if VA committed any errors regarding its duties to notify or to assist, those errors were harmless and did not prejudice the Veteran. II. Merits of the Claims The Veteran seeks service connection for bilateral hearing loss and bilateral tinnitus, which he states were caused by the acoustic trauma he experienced in the service while working as a lineman in the service, installing lines in combat areas. For the reasons stated below, the Board grants the Veteran's claims for bilateral hearing loss and bilateral tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for some organic diseases of the nervous system, including sensorineural hearing loss, may also be granted if those diseases manifest to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). To establish service connection for hearing loss, a claimant must also meet the requirements of 38 C.F.R.§ 3.385, under which impaired hearing is considered a disability if: (1) any of the auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or greater; (2) the thresholds for at least three of these frequencies are 26 decibels or greater; or (3) the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Veteran's service treatment records (STRs) reveal that the Veteran complained of sharp ear pain in the service. In November 2009, VA provided the Veteran an audiological examination to substantiate his claims for hearing loss and tinnitus. Audiometric data from that examination show auditory threshold levels of 40db or greater at 2000, 3000, and 4000 Hertz in the left ear and at 3000 and 4000 Hertz in the right ear. Based on the audiometric data, the VA audiologist who administered the examination found normal to moderately-severe sloping sensorineural hearing loss in the left ear and normal to moderate sloping sensorineural hearing loss in the right ear. As to the tinnitus, the Veteran reported to the VA audiologist that its onset occurred while performing duties related to his military service. The VA audiologist concluded that Veteran's hearing loss and tinnitus is less likely as not (less than 50 percent probability) caused by, or a result of, military related acoustic trauma. The VA audiologist provided the following rationale: "The veteran's MOS likely exposed him to excessive noise, but the [STRs] do not indicate that this had a permanent negative impact on hearing. All hearing tests within the [STRs] documents normal hearing. [STRs] were negative for any complaints or treatment for hearing loss or tinnitus during active duty." The VA audiologist further stated that Veteran's post-military occupational noise exposure may have contributed to his current degree of hearing loss and tinnitus, but that the "actual etiology is unknown." In April 2011, the Veteran saw a private audiologist, whose testing revealed that the Veteran has mild to moderate notched sensorineural hearing loss bilaterally. In reviewing the Veteran's entrance, exit, and other audiograms administered to him in the service, the private audiologist noted that even though those audiograms showed normal hearing levels, they nonetheless revealed a threshold shift of up 10dB between exams as the years progressed. The private audiologist opined that it was more likely than not that the Veteran's hearing loss and tinnitus are related to his noise exposure in service. The private audiologist based her opinion on threshold shifts between entrance and exit audiograms, case history, configuration of hearing loss, and onset of tinnitus. The audiological evidence of record establishes that the Veteran's bilateral hearing loss is a disability under 38 C.F.R. § 3.385. In addition, the Veteran's lay statement that he experiences ringing in the ears, which the Board finds credible based on the evidence of record, is competent evidence to establish a diagnosis for bilateral tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that a claimant is competent to testify that he has tinnitus because ringing in the ears is capable of lay observation); see Jandreau v. Nicholson, 492 F.3d. 1372, 1377) (Fed. Cir. 2007) (stating that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when ... a layperson is competent to identify the medical condition[]"); see Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that in weighing the credibility of lay evidence, the Board may consider "internal consistency, facial plausibility, and consistency with other evidence[]"). Thus, the Board finds that the Veteran's bilateral hearing loss and bilateral tinnitus are both present disabilities. As to whether the Veteran incurred an in-service injury related to these disabilities, VA has previously conceded that the Veteran suffered acoustic trauma in service. As to whether there is a "nexus" between the Veteran's in-service acoustic trauma and present disabilities, the Board considers the private audiologist's opinion to be adequate and to be the most probative evidence on the question of nexus under the circumstances of this case. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one.") (internal quotation marks and citations omitted). In rendering an opinion that linked the Veteran's disabilities to service, the private audiologist report reveals that she considered all the pertinent evidence of record, to include her own examination, the VA's audiologist's report, the Veteran's service treatment records, and the Veteran's case history. Moreover, the private audiologist supported her opinion with an analysis. Weighing the private audiologist's opinion with the other evidence of record, the Board finds that the evidence as to the question of "nexus" is at least in relative equipoise. Under such circumstances, the Board finds that reasonable doubt should be resolved in the Veteran's favor, and that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107(b) (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.) For all these reasons, the Board concludes that the criteria for service connection for bilateral hearing loss and bilateral tinnitus have been met. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs