Citation Nr: 1332265 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-30 907 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the RO. The Board notes that the Veteran requested a hearing with the Board in March 2010 and was scheduled for on in July 2010. In July 2010, prior to the date of the scheduled hearing, the Veteran submitted a request to reschedule the hearing. Subsequently, the Veteran canceled his request for a hearing and indicated that his claims file should go directly to the Board. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The currently demonstrated bilateral sensorineural hearing loss is shown as likely as not to be due to the Veteran's exposure to hazardous noise levels during his period of active service. 2. The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's exposure to hazardous noise levels during his period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his disability manifested by bilateral sensorineural hearing loss is due to disease or injury that was incurred in his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). To the extent that the action taken herein below is favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially 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). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory 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. When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet.App. at 160. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that his current bilateral sensorineural hearing loss and tinnitus are due to his excessive and harmful noise exposure during his period of active service. A review of the Veteran's service personnel records shows that his military occupation specialties included that as a radar technician and operator. The Veteran reported in his October 2008 claim that he was constantly in close vicinity to the radar transmitters that had a high whining sound. Given this factual background, exposure to noise is found to be consistent with the circumstances of his service. As such, in-service noise exposure is acknowledged. 38 U.S.C.A. § 1154(a). A March 2009 VA audiological examination showed that the Veteran met the regulatory hearing thresholds for a bilateral hearing loss disability. 38 C.F.R. § 3.385. The Veteran also report having ringing in his ears. As the symptoms of tinnitus are capable of lay observation, the current disability requirement has been met. See Charles v. Principi, 16 Vet. App. 370 (2002) (lay persons competent to testify about ringing in ears in service). A review of the Veteran's service treatment records show no audiometic testing, other than the whisper voice test, was conducted upon the Veteran's enlistment in December 1961. Shortly after his enlistment, in January 1962, the Veteran had a Bekesy audiometry evaluation. Although the test was not included in the Veteran's service treatment records, the March 2009 VA examiner reported that the testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 10 (20) LEFT 10 (25) 10 (20) 5 (15) 5 (15) 15 (20) Upon separation in October 1965, the Veteran's audiology examination revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 15 (25) 10 (20) 10 (15) LEFT 15 (30) 10 (20) 10 (20) 10 (20) 10 (15) (Prior to November 1967, in-service audiometric examination findings were generally reported in standards set forth by the American Standards Association (ASA). That is the figure on the left not in parentheses. 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, the ASA standard has been converted to ISO-ANSI standards and is represented by the figure in parentheses.) The Board notes that the Veteran has evidence of hearing loss not rising to the level of a disability for purposes of a VA disability in the Veteran's left ear in January 1962 and bilaterally in October 1965. See 38 C.F.R. § 3.382; Hensley, 5 Vet.App. at 160. The Veteran was afforded a VA audiology examination in March 2009 and reported being exposed to loud noise in service when he worked aboard the Radar Bomb Scoring "express" train without hearing protection and experienced noise levels that required him to raise his voice in order to communicate. The Veteran was also qualified with the M1 carbine rifle. The Veteran denied having excessive occupational or recreational noise exposure. The Veteran currently used hearing aids that were not as helpful as when he first started to use them and had difficulty hearing the television. In addition, he had constant bilateral tinnitus with its onset at least 20 to 25 years prior to the date of the examination. On audiological examination, the puretone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 45 55 55 LEFT 25 40 50 55 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. The examiner diagnosed the Veteran with mild to moderately severe bilateral sensorineural hearing loss and opined that the Veteran's bilateral hearing loss was not due to his in-service noise exposure. In so finding, the examiner noted that the Veteran had normal hearing upon separation with no significant threshold shifts. The examiner also acknowledged the Veteran's complaints of tinnitus and opined the Veteran's tinnitus was most likely secondary to the hearing loss. The Board notes that the examiner was requested convert the Veteran's in-service audiometric examination findings from ASA to ISO-ANSI and provide an addendum opinion. The July 2009 addendum opinion confirmed the March 2009 VA opinion. The examiner was also requested to provide a clarifying addendum opinion as to whether the Veteran's tinnitus was as likely as not due to his military service. This October 2009 VA addendum opinion provided that the Veteran's tinnitus was less likely as not due to his military noise exposure. The Veteran sought an audiological examination from a private physician. In August 2009, Dr. O.F. opined that the Veteran's three years of in-service noise exposure "could have certainly accelerated his hearing loss and thus eventually resulted in a moderate degree of sensorineural loss on both ears." In so doing, the examiner noted no other intervening factors existed such as family history of presbycusis or personal history of otologic infections or trauma. The Veteran asserted in his April 2009 Notice of Disagreement and August 2009 VA Form 9, that he currently had bilateral hearing loss and tinnitus that had their onset as the result of his in-service noise exposure. He further stated in his October 2008 claim that his hearing began to deteriorate shortly after discharge and gradually started to become more severe. The Board notes that the Veteran is competent to report as to the symptoms he experiences, such as difficulty hearing and ringing in his years, and its history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral hearing loss disability and tinnitus as likely as not are the result of the Veteran's exposure to excessive or harmful noise level beginning with that in connection with his duties during service. In resolving all reasonable doubt in the Veteran's favor, service connection in warranted. Gilbert, 1 Vet. App. at 53. ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs