Citation Nr: 1327217 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 11-17 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office, St. Louis, Missouri. FINDINGS OF FACT 1. Service treatment records document a shift in the Veteran's hearing acuity in service to the extent that slight bilateral hearing loss was diagnosed at discharge; and, the Veteran has presented competent and credible evidence of bilateral hearing loss since service. 2. The Veteran's tinnitus is as likely as not related to his active service or service connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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 sensorineural hearing loss will refutably be presumed if it is manifest in-service to a compensable degree within one year following active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, under 38 C.F.R. § 3.303(b), a nexus to service will be established where there is continuity of symptomatology since service but only with respect to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Further, the United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. An August 2010 VA audiological examination reflects a diagnosis of bilateral hearing loss for VA purposes as well as a diagnosis of tinnitus. The presence of a current disability (Holton element (1)) is established. Turning to element (2) of the Holton analysis, the presence of a hearing loss disability in service is shown. A comparison of the audiology tests at service enlistment and service discharge shows an obvious threshold shift especially in the upper frequencies. The Veteran had 25 dB loss at 3000, and 4000 Hz in the right ear and at 2000 and 3000 Hz in the left ear. Moreover, and of significant import, the August 1968 separation examination diagnosed the Veteran as having slight bilateral hearing loss. While not sufficient to meet VA requirements for a hearing loss disability at that time, the examination report does provide clear evidence of hearing loss during the Veteran's active service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Further, notwithstanding the notation of slight hearing loss at discharge, the Board recognizes that the Veteran was likely exposed to loud noise in service based on his duties as a rifleman and his receipt of a Vietnam Campaign Medal. 38 U.S.C.A. § 1154(b). Element (2) of the Holton analysis is also met. What remains to be established is whether the Veteran's current hearing loss is related to his documented hearing loss in service and/or his in-service noise exposure. In this regard, the August 2010 audiological examination provided a negative opinion based on the finding that the Veteran had normal hearing at service discharge. However, in providing that opinion, the examiner failed to consider or discuss the aforementioned in-service diagnosis of bilateral hearing loss as well as the shift in hearing acuity. The Board also notes that the discharge examination of another veteran, which was negative for any findings of hearing loss, had been misfiled with the Veteran's service treatment records. While these erroneous records were not cited to by the examiner, the Board cannot rely on the fact that the examiner did not consider these records. Both of these factors reduce the probative value of the August 2010 opinion and render the negative opinion essentially worthless. Thus, the Board must consider the statements of the Veteran solely. The Veteran states in his claim for benefits that he has had hearing loss since service. The Board finds that the Veteran is competent to report continuity of symptomatology of his hearing loss. 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). As to credibility, the Board references the separation examination which reports that the Veteran did have slight hearing loss at discharge. There is also no evidence that refutes his assertions of continuity of symptomatology. Thus, the Board finds that the Veteran's current hearing loss had either its onset in service or is otherwise etiologically related to his active service, to include in-service noise exposure. Element (3) of the Holton analysis is satisfied. All three elements to establish service connection for bilateral hearing loss have been met. Accordingly, service connection for bilateral hearing loss is granted. Turning now to the Veteran's entitlement to service connection for tinnitus, the Board notes that Veteran was afforded VA audiological examinations in August 2010. However, as referenced above, this examination has already been deemed inadequate for purposes of determining service connection and, thus, will not be considered herein. The evidence of record was otherwise negative for a competent etiological opinion as to whether the Veteran's tinnitus was incurred in or due to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran vaguely argues/asserts that his tinnitus had its initial onset in service. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). Tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board also notes that "[A]n associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may also occur as a symptom of nearly all ear disorders, including sensorineural or noise-induced hearing loss. Id. Indeed, "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Cha. 85, Inner Ear. Put another way, the cited provisions from The Merck Manual confirm that tinnitus usually accompanies noise-induced hearing loss. Given the Boards above determination on the Veteran's bilateral hearing loss, his diagnosis of tinnitus, and the provisions from The Merck Manual cited above, the Board concludes that evidence for and against the claim for service connection for tinnitus is, at the very least, in approximate balance. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ORDERS Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs