Citation Nr: 1327599 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-14 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral 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 Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1954. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2011 by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Wichita, Kansas, which denied the benefits sought on appeal. A Notice of Disagreement (NOD) was received in May 2011, a Statement of the Case (SOC) was issued in April 2012, and a Substantive Appeal was timely received in May 2012. Thus, the Veteran perfected timely appeals of the issues. In November 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence indicates that the Veteran's current bilateral hearing loss is causally related to his military service. 2. The evidence indicates that the Veteran's current tinnitus is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 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. The Veteran contends that he has bilateral hearing loss and tinnitus due to acoustic trauma during service. For example, in May 2010, he reported having tinnitus since service and not being given hearing protection during service. In December 2010, he indicated that, while aboard the USS Oriskany during his active military service, he was exposed to mine sweepers and very high-level noise environments. In April 2012 and in June 2012, the Veteran stated that, while aboard the USS Luzon during his active military service, he was exposed to 12-13 different mine sweepers tended by the USS Luzon. He also indicated that the ship crew compartment was adjacent to the engine room, which housed two very large diesel engines. He stated that at that time he noticed he had tinnitus and a decrease in hearing acuity, and was told that it would go away once he was off minesweeper duty. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999). As noted above, the first element of direct service connection requires medical evidence of a current disorder. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or, when the thresholds for at least three of these frequencies 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, even though disabling hearing loss may not have been demonstrated at the military separation, a Veteran may still establish service connection for a current hearing loss disability by showing he now satisfies the threshold minimum requirements of § 3.385 and by submitting evidence that his current disability is related to his active military service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Medical records establish that the Veteran has current bilateral hearing loss and tinnitus diagnoses. For example, the Veteran was found to have tinnitus at the January 2011 VA audiological examination. A VA Medical Center (VAMC) outpatient audiological evaluation in February 2012 shows the Veteran had bilateral hearing loss as defined by 38 C.F.R. § 3.385. There is also evidence suggesting the in-service incurrence of the bilateral hearing loss and tinnitus due to acoustic trauma. The Veteran's January 1951 military entrance examination and his November 1954 military separation examination document normal (15/15) whisper voice testing bilaterally. In this regard, prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The Veteran was not afforded pure tone audiogram testing at either military examination. The remaining service treatment records (STRs) do not document any pertinent complaints. However, in July 2012, the Veteran indicated that he sought treatment for ringing in his ears during the summer of 1951 aboard the hospital ship USS Repose and in October 1954 at the Oak Knoll Naval Hospital in Oakland, California. In April 2013, the AMC made a Formal Finding regarding the unavailability of these STRs. However, the Veteran's personnel records do document that he completed a Marksmen Course with a M1 rifle in March 1951 and attended a five-day course in Gun Directory in May 1952. The Veteran's DD-214 Form states that his Military Occupational Specialty (MOS) was "Instrument Man." His personnel records also indicate that his military duties changed to "Fire Control Technician" in October 1952. Further, the evidence of record establishes that the Veteran served in a combat zone in Korea from October 1953 to March 1954. See 38 U.S.C.A. § 1154(b) (2012) ("[VA] shall accept as sufficient proof of service- connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . ."). Based on the aforementioned evidence, the Board finds the Veteran's statements regarding his in-service acoustic trauma to be competent and credible. Finally, there is persuasive medical evidence that the Veteran's current bilateral hearing loss and tinnitus are related to the in-service acoustic trauma described above. The Veteran was afforded a VA examination in December 2012. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss and tinnitus, which the Veteran attributes to military service, can be associated with service-connected noise exposure and are caused by or a result of an event during his active military service. The examiner reasoned that no military entrance or exit audiograms were performed for this Veteran, and that the Veteran was exposed to high levels of shipboard noise. The examiner also noted the Veteran's contentions that his hearing was normal prior to and at the time of his entrance into the active military service. Thus, the examiner provided a positive medical nexus opinion. The December 2012 VA examiner's medical opinion is afforded high probative value as it was made after a review of the relevant evidence, including past examinations of the Veteran, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with the VA examiner's opinion. On VA audiological examination in January 2011, the examiner was unable to provide an opinion on the etiology of the Veteran's bilateral hearing loss and tinnitus as pure tone threshold values and Maryland CNC word list speech recognition scores were unreliable. Thus, there are no contrary medical opinions. As such, service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs