Citation Nr: 1332593 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-02 984A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1971 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2010 of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A bilateral hearing loss disability was incurred in service. 2. Tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 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. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims of service connection for a bilateral hearing loss disability and for tinnitus, VCAA compliance need not be addressed. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. To establish direct service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of continuous, active service, and a chronic disease, such as sensorineural hearing loss, an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a 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). 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 of 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. Service connection may also be granted on a secondary basis by aggravation, that is, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease and not due to the natural progress of the nonservice-connected disease. For secondary service connection, the evidence must show: (1) a current disability; (2) a service-connected disability; and (3) a nexus of a connection between the service-connected disability and the current nonservice-connected disability. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the weight and credibility of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). 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 veteran. 38 U.S.C.A. § 5107(b). Evidence The service records show that the Veteran's occupational specialty was Infantry Indirect Fire Crewman. The service treatment records show that on the audiogram on entrance examination, the puretone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz were 25, 15, 15, and 15, respectively, in the right ear, and 25, 15, 10, and 20, respectively, in the left ear. In October 1971, the Veteran was seen after he was hit on the right side of his head with a steel helmet and was knocked unconscious. There was evidence of a small abrasion inside the right ear. The ears showed no blood or fluid. On audiogram on separation examination, the puretone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz were 35, 35, 25, and 20, respectively, in the right ear, and 35, 25, 30, and 20, respectfully, in the left ear. The remainder of the service treatments contain no complaint, finding, history, symptom, treatment, or diagnosis of impaired hearing or a hearing loss disability under 38 C.F.R. § 3.385 or of tinnitus. After service, the Veteran filed the current claims in September 2009. The Veteran stated that he was exposed to the noise from light infantry weapons and from working weapon ranges. In November 2009 on VA audiology examination, the Veteran complained of decreased hearing and of tinnitus with onset in service. The Veteran gave a history of perforation of the right ear tympanic membrane when he was hit with a steel pot in service. The Veteran described in-service noise exposure to infantry weapons, including on weapon ranges. The Veteran indicated that after service he worked in battery manufacturing and he did fender work. On an audiogram, the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 65, 60, 55, 55, and 55 respectively, in the right ear, and 30, 35, 45, 55, and 60, respectfully, in the left ear. The speech recognition scores were 100 percent in the right ear and 80 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The VA audiologist stated that the results of the audiogram were related to the Veteran's exposure to high intensity sounds in service and a blow to the right ear and that tinnitus was related to the events in service. In November 2009 on VA examination by physician, specializing in ear disease, the physician expressed the opinion that bilateral sensorineural hearing loss was not very likely related to the blow to the right ear in service and that the hearing loss was not characteristic of noise exposure. The physician concluded that that it was less likely as not that the hearing loss was related to the Veteran's military service. The physician also concluded that tinnitus was related to sensorineural hearing loss. Analysis To establish entitlement to VA disability compensation, that is, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence of a disease or injury or event, resulting in disease or injury; and (3) a causal relationship between the present disability and the disease or injury or event, resulting in disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden, 381 F.3d at 1167. As for a present disability, on an audiogram in November 2009, the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 65, 60, 55, 55, and 55 respectively, in the right ear, and 30, 35, 45, 55, and 60, respectfully, in the left ear, which meets the standard of a hearing loss disability under 38 C.F.R. § 3.385 (auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies are 26 decibels or greater). And tinnitus was noted on the both VA examinations in November 2009. As for an in-service incurrence of an event, resulting in disease or injury, the Veteran is competent to describe noise exposure and tinnitus in service and the Veteran's statements are credible and consistent with his duties as an indirect fire infantryman. The last element necessary to establish service connection is a causal relationship between the present disabilities and noise exposure in service, the so-called "nexus" requirement. And there is medical evidence for and against the nexus requirement. The medical evidence in favor the claims consists of the opinion of the VA audiologist who stated that the results of the audiogram were related to the Veteran's exposure to high intensity sounds in service and a blow to the right ear and that tinnitus was related to the events in service. The medical evidence against the claims consists of the opinion of a physician, who expressed the opinion that bilateral sensorineural hearing loss was not very likely related to the blow to the right ear in service and that the hearing loss was not characteristic of noise exposure. The physician concluded that that it was less likely as not that the hearing loss was related to the Veteran's military service. The physician also concluded that tinnitus was related to sensorineural hearing loss. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). When, after careful consideration of the entire record, a reasonable doubt arises regarding a material issue of fact, such doubt will be resolved in favor of the Veteran. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Whereas here the same set of facts have resulted in contradictory conclusions, the Board finds that there is an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claims of service connection. As the positive and negative nexus opinions are of equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's current bilateral hearing loss disability under 38 C.F.R. § 3.385 and of tinnitus are related to noise exposure in service, and reasonable doubt is resolved in the Veteran's favor. As the three elements of direct service connection have been established, the Veteran prevails. And the Board need not address further the lay evidence or other theories of entitlement, such as presumptive service connection for a chronic disease, or secondary service connection. ORDER Service connection for a bilateral hearing loss is granted. Service connection for tinnitus is granted. ___________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs