Citation Nr: 1332631 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-03 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri that in relevant part denied entitlement to the above claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is etiologically related to exposure to noise during service. 2. The Veteran's bilateral tinnitus is related to the loud noise exposure during service. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires VA 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). In view of the Board's favorable decision to grant service connection for bilateral sensorineural hearing loss and tinnitus in the analysis below, any further discussion as to any lapses in duties to assist and notify would not service any useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Service Connection The Veteran currently seeks service connection for bilateral hearing loss and tinnitus, which he claims are the result of exposure to acoustic trauma during service. For the reasons that follow, the Board finds that the Veteran's present claimed disabilities are related to service and concludes that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). The Veteran has a current diagnosis for hearing loss and tinnitus in both ears and the severity of his hearing in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. (See October 2011 VA audiological examination report.) Next, the evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. The Veteran's DD 214 reflects that he served as an armor crewman in the Army. The Veteran provided a full description of his noise exposure during an October 2010 private examination. He reported that during service he was exposed to machine gun fire and canon fire. He noted military noise exposure to include firearms, machine guns, mortars, missile launchers, and explosives. The Veteran's service treatment records show normal hearing both at entrance and at separation. In the report of medical history completed by the Veteran at the time of separation, he reported no trouble with his ears, including no running of the ears. Noise exposure is consistent with the conditions of service as an armor crewman. The Board will assume for the purposes of this decision that the Veteran has inservice noise exposure. See 38 U.S.C.A. 1154(a). The Board turns to the third element of service connection, a nexus between the claimed in-service disease or injury and the current disability. The claims folder contains competing VA and private medical opinions that address this question. 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a Veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a Veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). A January 2010 VA examination found the Veteran's hearing loss and tinnitus were not caused by service because there was no onset during service. The Board finds this opinion to be inadequate, as it fails to consider whether the Veteran's current disability is linked to service despite the lack of evidence of disability in service. See Hensley. An October 2010 private opinion provided a positive nexus opinion linking the Veteran's hearing loss and tinnitus to service. Though the examiner did not review the claims file, the Veteran provided the examiner with a detailed account of his noise exposure during service. He also reported that he did not notice any hearing loss symptoms during service, and that his audiograms performed at separation revealed normal hearing. He stated his hearing began to decline in the 1970's and progressively worsened. He also endorsed occupational noise exposure as a farmer since service. The examiner found that the Veteran's current disability was as least as likely as not a result of his noise exposure during service, though the Veteran's post-service noise exposure likely had some effect. An October 2011 VA examination found the Veteran's hearing loss and tinnitus disabilities were not linked to service. The examiner based his opinion on the lack of onset of symptoms during service, and attributed the hearing loss and tinnitus to the Veteran's post-service noise exposure. In this case, the Board is presented with conflicting medical opinions that are both against and supportive of the claims for service connection for a bilateral hearing loss disability and tinnitus. Evidence against the claims includes the Veteran's post-service exposure as a farmer as noted in private treatment reports and a VA medical examination that did not support a nexus to service for the Veteran's hearing loss and tinnitus. Positive evidence includes a positive nexus opinion from a private treatment provider. The October 2010 private medical opinion and the October 2011 VA opinion considered the Veteran's noise history in service and his nose history after service. Additionally, both opinions considered the relevant facts. As such, the Board finds that the evidence is at least in equipoise that the bilateral hearing loss and tinnitus are related to in-service noise exposure. Consequently, the benefit-of-the-doubt rule applies. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the Board concludes that service connection for bilateral hearing loss and for tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. OSBORNE Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs