Citation Nr: 1329006 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-06 966 ) 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 Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty in the Navy from January 1955 to January 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision of a Regional Office (RO) of Veterans Affairs (VA). In May 2013, the Board remanded the matters for further development. In deciding this appeal, the Veteran's electronic file in the Veterans Benefits Management System (VBMS) has been reviewed. FINDINGS OF FACT 1. The Board resolves reasonable doubt in the Veteran's favor by finding that bilateral hearing loss is etiologically related to active service. 2. The Board resolves reasonable doubt in the Veteran's favor by finding that tinnitus is etiologically related to active service CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONLCUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels (db) or greater; or the auditory thresholds for at least three of these frequencies are 26 db or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). 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. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts he has hearing loss and tinnitus as a result of noise exposure during service. He reports that as a seaman in the first division aboard the USS Conecuh in 1955, his duties routinely included assisting a gunner's mate with manning the forward twin 40MM gun. He added that when he went to sick bay complaining of ringing in his ears, the Corpsman assured him that the ringing would go away. Noise exposure after transferring to the USS Maury in 1960 has been noted to include not from weapons training but also from constant machinery, bells whistles and klaxons. He maintains that he has had ringing in his hears and hearing loss ever since service. Lending credibility to his assertions are his service personnel records reflecting service aboard both the USS Conecuh, a replenishment fleet tanker, and the USS Maury. Although service records are negative for documented complaints of hearing loss or tinnitus, the Board finds the Veteran's report of in-service events to be credible and not inconsistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a). Thus, the Board accepts that the Veteran was exposed to loud noise during service. Further, and although service treatment records do not reflect results of audiometric testing, if any, and whispered voice testing was 15/15, on the right and left at separation, such does not prevent the Board from finding in favor of service connection. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The July 2013 VA examination report reflects tinnitus and sensorineural hearing loss for VA compensation purposes in both ears. The examiner determined that it is at least as likely as not that the Veteran's hearings loss and tinnitus are related to at least one instance of acoustic trauma from weapons firing in close proximity resulting in some hearing damage and onset of tinnitus. Furthermore, the Veteran's report is consistent with his service and the Board finds his report of a continuity of symptoms to be credible. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board accepts that the Veteran had excessive noise exposure during service, based upon not only his service record but also on his credible statements, and finds that his report as to onset of hearing loss and tinnitus and a continuity of symptoms after separation to the present, to be both competent and credible. The evidence is in at least equipoise. Thus, resolving doubt in his favor, 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. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs