Citation Nr: 1332116	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-04 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for bilateral tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Andrea Johnson, Associate Counsel


INTRODUCTION

The Veteran had active military service from August 1978 to August 1982.

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence.


FINDINGS OF FACT

1.  The evidence establishes the Veteran's current bilateral hearing loss disability was caused by his military service.

2.  The evidence establishes the Veteran's bilateral tinnitus was caused by his military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have been met. 38 U.S.C.A.   § 1131 (West 2002); 38 C.F.R. §§  3.303, 3.385 (2013).

2.  The criteria for service connection for tinnitus have been met. 38 U.S.C.A.          § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is currently seeking service connection for bilateral hearing loss and tinnitus.  As the Board finds both claims are granted, only a limited amount of relevant evidence will be discussed.

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a threshold matter the Board concedes the Board was exposed to very loud noise during his military service.  The Veteran served as a radar and communications systems operator onboard naval vessels, including aircraft carriers, and stated during these duties he was exposed to excessive high frequencies noise.  38 U.S.C.A.  § 1154(a).  Therefore in order to establish service connection the Veteran's military noise exposure must cause a hearing loss disability.  

Under the regulations hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Service treatment records were reviewed and reflect the Veteran had some degree of loss of hearing acuity during military service, but did not have a hearing loss disability for VA purposes.  However, the Court has held that even if the audiometric testing results at the Veteran's separation from service do not meet the regulatory requirements for establishing a disability at the time, he is not precluded from establish service connection for a current hearing disability.  Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993).

Post-service treatment records were also reviewed and the relevant results are summarized below:

In September 2009, the Veteran was provided with a VA examination to evaluate the nature and severity of his hearing loss and tinnitus.  The Veteran reported experiencing constant tinnitus in both ears which he described as "annoying."  The Veteran stated his tinnitus began in 1982-1983, suggesting his condition began during or shortly after his military service.  Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
25
40
45
LEFT
0
10
25
45
50

Based on these results the examiner opined the Veteran had bilateral sensorineural hearing loss and tinnitus.  The Board agrees the auditory thresholds at 3000 and 4000 Hertz were 40 decibels or greater in both ears, meeting the VA requirements for a hearing loss disability under the regulations.  38 C.F.R. § 3.385.  Therefore the Board finds the results from this examination establish the Veteran currently has a bilateral hearing loss disability and bilateral tinnitus.

The examiner also opined the Veteran's hearing loss and tinnitus were "less likely as not" a result of his military noise exposure.  However the examiner did not provide any rationale for his opinion.  Due to the ambiguity in the wording of the examiner's opinion as well as the lack of rationale, the Board requested an additional medical expert opinion (VHA opinion) in August 2013.

In September 2013 the medical expert reviewed the Veteran's claims file and opined the threshold shifts noted throughout the Veteran's military service could be indicative of long-term injury to his ears.  Therefore, the expert opined the Veteran's hearing loss was at least as likely as not related to his noise exposure during military service.  Accordingly, the Board finds all elements of service connection are met and the Veteran's claim for bilateral hearing loss is granted.

In regards to his claim for tinnitus, the Court has specifically determined that tinnitus is a type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370 (2002).  As discussed above, the evidence establishes the Veteran currently has bilateral tinnitus, and the Veteran stated his condition began during or shortly after his military service.  Accordingly the Board finds all elements of service connection have been met and the Veteran's claim for bilateral tinnitus is granted.

Duties to Notify and Assist

The Veteran's claims for service connection are granted, constituting a full grant of all benefits sought on appeal.  In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary, because any potential failure of VA in fulfilling these duties is harmless error.

ORDER

The claims are granted, subject to the laws and regulations governing the award of monetary benefits.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs