Citation Nr: 1332907 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-24 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for recurrent tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1969 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified before the VA Decision Review Officer (DRO) at a March 2010 hearing conducted at the RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, he is diagnosed with recurrent tinnitus that is etiologically related to his period of active service. 2. The Veteran's bilateral hearing loss is etiologically related to his active military service. CONCLUSIONS OF LAW 1. Recurrent tinnitus was incurred in active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the injury or disease was contracted in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). I. Tinnitus The Veteran asserts he is entitled to service connection for recurrent bilateral tinnitus as directly related to his active service. Specifically, the Veteran asserts that he was exposed to acoustic trauma while working as a quarry machine operator for the U.S. Army. The Veteran did have service in the Republic of Vietnam as well as stateside. He asserts that he suffers from recurrent bilateral tinnitus ever since service. See, e.g. January 2009 Notice of Disagreement. Based on this type of service (quarry machine operator), exposure to highly loud noises during military service must be conceded. A review of the Veteran's service treatment records does not reveal complaints or a diagnosis of tinnitus. During the development of the Veteran's claim, he was provided a VA examination where the VA examiner noted in his report that the Veteran had tinnitus in his right ear and not in the left. Following an audiological examination of the Veteran, the VA examiner opined that the Veteran's recurrent tinnitus is neither caused by nor the result of his active military service. The examiner based this conclusion on the fact that the Veteran only noticed the onset of tinnitus in 2007. In addition, he noted that the Veteran stated he did not have recurrent tinnitus since service. However, the examiner did concede that the Veteran had noise exposure during service. See August 2008 VA Audiological Examination. Nevertheless, there is evidence of a current disability and the issue becomes whether the Veteran's tinnitus either began during or was otherwise caused by his military service. The Veteran stated in his June 2008 Claim, his January 2009 Notice of Disagreement and his July 2009 VA-Form 9 that he had experienced ringing in his ears while on active duty and it has continued since that time. See June 2008 VA-Form 21-4138; see also January 2009 Notice of Disagreement; June 2009 VA-Form 9. The Veteran also states that the reason he is seeking a claim at this time is that the constant ringing in his ears has seemingly become worse since 2007. See January 2009 Notice of Disagreement; see also Hearing Transcript at 6. In the instant case, even though the VA examiner provided a negative nexus medical opinion, the Board notes that tinnitus is the type of disability associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). In certain cases, such as this one, his lay testimony is competent evidence showing a current diagnosis of tinnitus. The statements made on the VA-Form 9, Veteran's Notice of Disagreement, Hearing Transcript, as well as the Veteran's claim dated June 2008, absent contradictory evidence on record, are sufficient to establish an in-service diagnosis of tinnitus and to establish that the Veteran has had ringing in his ears since service and continuing through the present. In this respect, even though he reported that he did not have an onset of recurrent tinnitus until 2007 during the VA examination, he has provided sufficient evidence as to why he believes his tinnitus has existed since being exposed to acoustic trauma in-service. The Board finds the Veteran's statements that he has suffered from tinnitus since service are credible and is led to conclude that the evidence of record is in relative equipoise, thus mandating that reasonable doubt be resolved in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, for the reasons discussed above and resolving all doubt in favor of the Veteran, the Board concludes that service connection for recurrent tinnitus is warranted. II. Hearing Loss The Veteran contends he suffers from bilateral hearing loss disability due to his military occupation as a quarry machine operator. For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94%. 38 C.F.R. § 3.385 (2012). VA audiological examination results from August 2008 indicate the Veteran suffers from bilateral hearing loss for VA purposes. The Veteran's military occupational specialty (MOS) is listed as quarry rock operator, and he has stated that he was exposed to acoustic trauma from operating heavy machinery and working with dynamite. Therefore, as noted above, acoustic trauma is conceded. The Veteran's May 1971 separation examination shows that the Veteran had normal hearing upon clinical evaluation. See May 1971 Report of Medical Examination. In order to deny Veteran's claim, VA must establish by the preponderance of the evidence that the Veteran's current bilateral hearing loss is not etiologically related to his in-service acoustic trauma. "A Veteran need only demonstrate that the there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert, 1 Vet. App. at 53. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise," the law dictates that the Veteran prevails. Id at 54. In light of the Veteran's in-service acoustic trauma due to his MOS as a quarry machine operator and resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. ORDER Service connection for bilateral tinnitus is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs