Citation Nr: 1329583 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-33 811 ) 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 Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1959 to April 1963, with prior and subsequent periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for the claims currently on appeal. FINDINGS OF FACT Bilateral hearing loss and tinnitus are related to the Veteran's noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (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 claims entitlement to service connection for hearing loss and tinnitus. He asserts that these disabilities are the result of noise exposure during basic training for the U.S. Marine Corps. Specifically, he claims that he was subjected to noise from firing rifles, machine guns, and grenades. The Veteran reports that constant tinnitus began during service, and that he has experienced both hearing loss and tinnitus since service. See November 2010 VA Form 21-526. 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The medical evidence of record, which includes a March 2011 VA audiological examination report and a December 2010 letter from the Veteran's private audiologist, reflects diagnoses of hearing loss and tinnitus. Thus, the Veteran has satisfied the first Shedden requirement of a current disability. The Veteran's Form DD-214 shows that his military occupational specialty (MOS) was administrative man/stenographer. While this MOS generally is not associated with acoustic trauma, the Veteran has stated that he was exposed to excessive noise, without the use of hearing protection, during basic training. The Board finds that the Veteran is competent to report that he experienced noise exposure in service, and that he has experienced hearing loss and tinnitus since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). Further, the Board finds that the Veteran's reports of noise exposure, hearing loss, and tinnitus are credible. There is no evidence contradicting the Veteran's statements concerning in-service noise exposure during basic training. Accordingly, the Veteran's in-service exposure to acoustic trauma is conceded. There are conflicting medical opinions as to whether the Veteran's current hearing loss and tinnitus disabilities are related to service. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). A March 2011 VA audiological examination includes an opinion that it is "less likely as not" that the Veteran's hearing loss and tinnitus are related to in-service noise exposure. In support of his opinion the examiner stated that: [The Veteran's] exposure to high risk noise in the military was related to weapons fire during basic training during boot camp. The status of his hearing was not assessed by valid means when he enlisted and when discharged from the service. His post military exposures to noise were not considered excessive. His current audiogram displayed a bilateral high frequency impairment (L>R) less likely than not related to noise exposure. [The Veteran] was also assessed for hearing loss in Oct. of 2001 and Dec. of 2010. The earlier examination revealed a mild impairment at 4k Hz for the R ear and mild to moderate for the L ear at 3-4k Hz. His current audiological data reveals a significant aggravation of hearing when hearing loss from noise exposure was not a factor in his life. It is also noted that the 2001 values reflect his hearing some 38 years after discharge. Considering his hearing showed a progressive loss in the decade to follow, his hearing would have been significantly better 38 years earlier at the time of his discharge. In addition, assuming significant high frequency hearing loss was attributable to weapons fire limited to basic training, as such, many soldiers would show hearing impairments when such is not the case. Exposures related to more excessive noises over longer periods of time, i.e. especially combat related noise are the more common bases for resulting HL. However with a lack of validating hearing data at discharge, an opinion of was not caused by military trauma is not appropriate. His claim for tinnitus follows the same line of reasoning as was presented for his claim for hearing loss. The aggravation of hearing loss (cochlear damage) displayed over the last 10 years, not related to noise exposure, implies another medical factor is the basis for hearing loss and tinnitus. The record also contains a positive nexus opinion from J.D., the Veteran's private audiologist. A December 2010 letter included audiometric testing results that revealed mild to severe sensorineural hearing loss in the right ear, and mild to moderately severe sensorineural hearing loss in the left ear. The audiologist considered the Veteran's report of in- service noise exposure which included training on grenades, rocket launchers, machine guns, rifles and hand guns. She noted that the Veteran reported constant tinnitus which began during his time in the military and that he first noticed it one night while on guard duty. She related that there was no other history of noise exposure post military. She opined that it is "more likely than not" that the Veteran's hearing loss and tinnitus are related to his military noise exposure. In support of her opinion, she stated, "[i]t is documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram. This opinion is based on case history, and onset of tinnitus." In August 2011, J.D. submitted another statement indicating that she had reviewed the Veteran's service treatment records (STRs), including his entrance and separation exams. She noted that a whisper test is an invalid form of testing hearing loss. The audiologist reiterated that "it is more likely than not that the Veteran's hearing loss and tinnitus is related to his military noise exposure and it may have worsened as a civilian." She related that the opinion was based on case history, configuration of hearing loss and onset of tinnitus. The examiner further supported this opinion by stating, "[i]t is also very common that the noise induced hearing loss will deteriorate and worsen over time even if the patient is never exposed to loud noise again." The Board finds the December 2010 and August 2011 opinions of the private audiologist are probative in establishing a nexus between the Veteran's current disability, hearing loss and tinnitus, and service. The audiologist provided her opinion based on the Veteran's service treatment records, the relevant history, including history provided by the Veteran concerning the onset of hearing loss and tinnitus, as well as based her opinion on case history, and configuration of hearing loss. These factors add significantly to the probative value of the nexus opinions given. She also explained that it was common that noise induced hearing loss will deteriorate and worsen over time even if the patient was never exposed to loud noise again. The Board finds that the opinions offered by the private audiologist are internally consistent and provided a complete rationale for the opinion given. Concerning the March 2011 VA examiner's opinion, the Board finds that it is not completely consistent in its finding. While the audiologist stated that hearing loss and tinnitus are less likely as not caused by or a result of acoustic trauma, he also makes a statement which appears to be in conflict with this conclusion reached. In this regard, he noted that "exposures related to more excessive noises over longer periods of time, i.e. especially combat related noise are the more common bases for resulting hearing loss. However, with a lack of validating hearing data at discharge, an opinion of was not caused by military trauma is not appropriate." This conclusion suggests that hearing loss may be related to service. The opinion also appears to not take into account the Veteran's history of experiencing tinnitus in service. The Board finds that the Veteran is competent to report when tinnitus first started and the Board also finds his report to be credible, as there is no compelling or probative evidence to the contrary. As part of the rationale for finding that it was less likely than not that the Veteran's hearing loss was related to service, the examiner stated that assuming significant high frequency hearing loss was attributable to weapons fire limited to basic training, as such, many soldiers would show hearing impairments when such is not the case. This rationale is not probative in determining whether hearing loss in the Veteran occurred as a result of such exposure. This is the case especially in the absence of any medical support or authority for such finding. After reviewing the evidence of record, the Board finds that the private opinions showing a nexus between service and the Veteran's hearing loss and tinnitus are more probative than the March 2011 VA opinion which states that it is less likely as not related to service. As such, the Board finds that the evidence supports the claim of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs