Citation Nr: 1332313 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-39 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1968 with service in the Navy Reserve from 1983 to 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is related to service. 2. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a bilateral hearing loss disability and tinnitus, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to claim of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Hensley, 5 Vet. App. at 159. 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, 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 report of a February 2010 VA audiology examination indicates the Veteran currently has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of in-service occurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such occurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2013). The Veteran has been awarded various service medals to include the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device, and the Vietnam Service Medal with 2 Bronze Stars. The Veteran reported combat exposure while on active duty and evidence of a Bronze Star indicates that the Veteran served in a combat zone during a named campaign. Accordingly, the Board will concede that the Veteran was exposed to loud noises while in-service. The Veteran is alleging that his current hearing loss and tinnitus are due to exposure to loud noise in the military, including working as a gunner and loader, general ship noise, and being around the grinder and chippers. See e.g., February 2010 VA examination report. In reviewing the service treatment record the Board observes the Veteran was provided with a medical examination at entrance to, and separation from, service in February 1964 and February 1968, respectively. Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiogram in the instant case conducted at entrance to service in February 1964 must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. At the Veteran's entrance examination in February 1964 pure tone thresholds, in decibels, converted from ASA to ISO units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (5) 15 (5) 10 (0) 10 (0) 5 (0) LEFT 15 (0) 10 (0) 10 (0) 10 (0) 10 (5) On his separation examination the medical examiner also did not find any ear defects and his hearing was recorded as 15/15. The Veteran had multiple other hearing examinations throughout his Reserve service. His hearing on all of the examinations was recorded as 15/15 using the whisper test. See March 1983, June 1984, January 1985, June 1986, April 1988, January 1989, August 1990, and May 1991 Reports of Medical Examination. The Veteran has provided statements that his hearing loss and tinnitus began in service and continued on thereafter. VA treatment records from June 2008 note the Veteran's complaints of hearing loss. At his February 2010 VA examination the Veteran reported that he began experiencing hearing loss and tinnitus in service when he worked as a gunner positioned in a small metal structure. After firing shots he would experience ringing in his ears. He also reported the tinnitus had been constant for the last 3-4 years and that he had progressive bilateral hearing loss since service. Post-service the Veteran worked in the VA Mess hall, as a police officer, as a gas station owner, for the railroad, and as a building maintenance man. The examiner diagnosed the Veteran with sensorineural bilateral hearing loss and tinnitus. The examiner stated that she could not give an opinion regarding the etiology of the Veteran's bilateral hearing loss disability without resorting to mere speculation. However, she then went on to state that all examinations, except the entrance examination, were given using the whisper test which is not reliable evidence of normal hearing and is insensitive to high frequency hearing loss characteristic of acoustic trauma. She also opined that the Veteran's current bilateral hearing loss appeared to be greater than would be expected due to aging alone. She stated that current hearing loss could be due to aging, military and post-service noise exposure, and other factors. She also noted a study by the Institute of Medicine which found that it was difficult, or impossible, to assess the etiology of hearing loss without audiograms from the beginning and end of military service. The examiner opined that the Veteran's tinnitus was at least as likely as not associated with hearing loss. The Veteran responded in his September 2010 VA Form 9 noting that he wore hearing protection while at the firing range and when working for the railroad. At the very least, the Board finds the evidence is in relative equipoise. The Board has conceded noise exposure in service based on the Veteran's combat experience and while the February 2010 VA examiner stated she could not provide an opinion without resorting to mere speculation, she then went on to provide an actual opinion. She noted the whisper tests were unreliable and that the Veteran's current hearing loss was greater than what would be expected due to aging alone and could be due to military noise exposure. She also referred to studies showing it was difficult, or impossible, to determine the etiology of hearing loss without entrance and separation audiograms. She also linked tinnitus to the Veteran's hearing loss. The Veteran is competent to state that he experienced hearing loss and tinnitus in service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is considered competent to report on that of which he or she has personal knowledge). Accordingly, the Board finds that resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the benefit of the doubt must be resolved in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs