Citation Nr: 1330748 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-15 144A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his current bilateral hearing loss is related to his in-service noise exposure. 2. Resolving all doubt in favor of the Veteran, his current tinnitus is related to his in-service noise exposure and bilateral hearing loss. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has asserted that service connection is warranted for bilateral hearing loss and tinnitus because he was exposed to significant noise exposure during service. He has specifically asserted being exposed to noise from jet and reciprocating aircraft engines while assigned to the flight line and as a crewman. The Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was an aircraft mechanic. Therefore, as his reports of exposure to noise from jet and reciprocating aircraft engines are consistent with the circumstances of his service, the Board acknowledges his in-service noise exposure. At the outset, the Board notes that, prior to October 31, 1967, service department 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). In order to facilitate data comparison, where applicable, the ASA standards have been converted to ISO-ANSI standards. In this regard, the ASA pure tone thresholds as noted in the Veteran's service treatment records (STRs) are represented by the digit not contained in parentheses, while the converted ISO-ANSI pure tone threshold are contained in the parentheses. Audiological evaluation conducted as part of the April 1966 enlistment examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) -5 (5) - -5 (0) LEFT 5 (20) 5 (15) 5 (15) - 5 (10) Audiological evaluation conducted as part of a November 1966 Air Crew Candidate examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 (20) 5 (15) 0 (10) 15 (25) 15 (20) 20 (30) LEFT 10 (25) 10 (20) 5 (15) 5 (15) 10 (15) 10 (20) Audiological evaluation conducted as part of the June 1969 separation examination revealed 15/15 hearing acuity bilaterally on whispered voice testing and spoken voice test. No audiological threshold readings were conducted. In order to determine whether the Veteran had current bilateral hearing loss and tinnitus related to his military service, to include the aforementioned noise exposure, he underwent a VA audiological examination in March 2009. The Veteran reported having constant, bilateral tinnitus, which had its onset approximately 10 years prior. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 35 55 65 LEFT 30 30 60 65 70 The March 2009 VA examiner normal hearing bilaterally from 500-4000 Hz in April 1966, normal hearing bilaterally from 500-6000 Hz in November 1966, and a normal whisper test in June 1969. The examiner opined that, due to the delay of onset of symptoms until 10-15 years prior, which was over 20 years post-military exposure, it was not at least as likely as not that hearing loss or tinnitus was related to service. However, the VA examiner did not address the threshold shifts between April 1966 exam and the November 1966 exam, as he did not acknowledge that the in-service audiometric readings had not been converted from ASA to ISO-ANSI. As such, in August 2013, the Board requested that a VA audiologist review the claims file and provide an expert medical opinion as to whether the Veteran's current hearing loss and tinnitus are related to his military service. Thereafter, in an August 2013 opinion, which was received in September 2013, a Board-certified VA audiologist reviewed the record and opined that it is at least as likely as not that the Veteran's current bilateral hearing loss and tinnitus are related to his active military service, to include his in-service noise exposure to jet and reciprocating aircraft engines. In making this determination, the VA audiologist noted that the Veteran had a significant threshold sift at 4000 Hertz in the right ear between April 1966 and November 1966. The VA audiologist also noted that the November 1966 audiometric exam showed mild hearing loss at the 6000 Hertz threshold in the right ear, further opining that it is at least as likely as not that the Veteran had right ear hearing loss within one year of separation from service. The VA audiologist further noted that whispered voice tests are not considered to be valid methods of evaluating hearing ability. With respect to the Veteran's tinnitus, the VA audiologist stated that tinnitus is considered to be an etiology that is associated with sensorineural hearing loss and acoustic trauma. In this regard, the VA audiologist noted that the Veteran has a current diagnosis of sensorineural hearing loss and he reported being exposed to jet and reciprocating aircraft engines from 1966 to 1969 for eight to 16 hours per day. In evaluating this claim, the Board finds that the August 2013 expert medical opinion provided by the VA audiologist is competent, credible, and probative evidence in support of the Veteran's claims, as it relates the Veteran's bilateral hearing loss and his tinnitus to his military service. Such also relates his tinnitus to his current hearing loss disability. The Board notes that the VA audiologist reviewed the claims file prior to rendering her opinion and provided a rationale in support of her conclusion, which is supported by the other evidence of record, including the STRs. In this context, the Board notes that the Veteran is found to have been exposed to significant noise during service and the STRs show he manifested a significant threshold shift in his hearing during service. The VA audiologist noted the Veteran's inconsistent reports of post-service recreational noise exposure, but she ultimately provided a favorable medical opinion in support of the Veteran's claims. In evaluating the ultimate merit of this claim, the Board also notes that there is no other medical evidence or opinion of record which contradicts the August 2013 medical opinion provided by the VA audiologist. Therefore, based on the foregoing, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted, as there is competent, credible, and probative evidence of record showing that the Veteran's current bilateral hearing loss and tinnitus are related to his in-service noise exposure. Furthermore, such demonstrates that the Veteran's tinnitus is also related to his bilateral hearing loss. Accordingly, the Veteran's claims of service connection for bilateral hearing loss and tinnitus are granted. In making this determination, all doubt has been resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs