Citation Nr: 1332961 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-03 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in July 2010, a statement of the case was issued in December 2010, and a substantive appeal was received in January 2011. The Veteran presented testimony at a Board hearing in September 2011. A transcript of the hearing is associated with the Veteran's claims folder. The issue of entitlement to service connection for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's tinnitus began during service. CONCLUSION OF LAW The criteria for an award of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board notes that an RO letter dated May 2010 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). However, an award based on continuity only applies for claims based on chronic diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any 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). At his September 2011 Board hearing, the Veteran offered credible testimony that he incurred numerous forms of excessive noise exposure, including duties as the main loader for two weapons and as a boiler technician exposed to boilers and bilge pumps. He testified that he had no ear protection in service. He experienced tinnitus in service but did not seek treatment because he did not want to be considered a "malingerer." He testified that he did not have any post-service noise trauma. The service treatment records include an enlistment and separation examination both showing normal whisper voice testing (15/15). There is no mention of tinnitus. The only remaining evidence to consider is the Veteran's testimony, which the Board finds to be credible. Again, he is deemed to have been exposed to acoustic trauma and indicates that tinnitus resulted from such trauma while he was still on active duty. Under the benefit-of-the- doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence of record, and the absence of significant post-service noise exposure, such a conclusion cannot be made in this case. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for tinnitus is granted. REMAND The Veteran has claimed entitlement to service connection for hearing loss. The service treatment records include an enlistment and separation examination both showing normal whisper voice testing (15/15). However, this is not a scientifically accurate measurement of auditory acuity and would not necessarily detect minor degradations in hearing ability. No audiometric testing was performed beyond the whispered voice tests. Moreover, there has been no post service medical evidence of hearing loss. Consequently, there is insufficient evidence to determine if the Veteran even has a hearing loss disability pursuant to 38 C.F.R. § 3.385. The Board finds that a VA audiologic examination is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO should make sure that the VA records are updated and in the claims folder. 2. The Veteran should be afforded a VA audiologic examination for the purpose of determining the nature, etiology and severity of the Veteran's alleged hearing loss. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any hearing loss disability began during or is causally related to service, to include as due to conceded excessive noise exposure in service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs