Citation Nr: 1333375 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-25 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to November 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied entitlement to service connection for bilateral hearing loss in January 2011 and tinnitus in March 2012. It was previously before the Board in May 2013, at which time it was remanded to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. Following the AMC's attempts to complete the requested actions, the case has since been returned to the Board for further review. This appeal was processed using the Virtual VA and/or Veterans Benefits Management System (VBMS) which entail paperless claims processing. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is at least in relative equipoise that bilateral hearing loss and tinnitus of the Veteran are attributable to his military service, inclusive of acoustic trauma therein and/or the result of otitis media and claimed "cat fever." CONCLUSION OF LAW Bilateral hearing loss and tinnitus were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the disposition herein reached is favorable to the Veteran-appellant, the need to discuss the VA's efforts to comply with VA's duties to notify and assist the Veteran, as codified in the United States Code and its implementing regulations, or as set forth in the body of law interpretive thereof, is obviated. The same is true with respect to the question of whether substantial compliance was achieved by the AMC regarding the Board's recent request for additional development of this case. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 U.S. Court of Appeals for Veterans Claims (Court), in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between inservice exposure to loud noise and current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Here, the evidence of record, including the credible, probative account provided by the Veteran, is at least in relative equipoise that the Veteran's bilateral hearing loss and tinnitus are attributable to his period of military service, including acoustic trauma and otitis media or claimed "cat fever" occurring therein. Service treatment records are largely unavailable through no fault of the Veteran. There is on file, however, an October 1947 report of his separation medical examination, when it was noted by a service department medical professional that the Veteran had been treated on multiple occasions in service for otitis media. At separation, the Veteran's hearing was tested by whispered voice as 15/15, bilaterally; no disease or defect was identified. The Veteran, however, has provided written and oral testimony, including that offered by him at RO and Board hearings in 2011 and 2013, respectively, that he was subject to excessive noise levels in service without ear protection as a result of his temporary assignment to a tank unit, as well as to weapons fire during training. He reports having been trained as a rifleman, although he states that most of his duty overseas was served as a parts clerk or driver. He further indicates that he suffered from "cat fever" in service and was treated in the hospital therefor, with earaches occurring at that time and subsequently. His daughter has likewise corroborated that the Veteran's account of ear problems, including hearing loss, earaches, and ringing in the ears of longstanding duration. These statements and testimony are competent, credible, and probative, and notwithstanding the Veteran's postservice noise exposure, the Board concedes the occurrence of inservice acoustic trauma. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, this case turns on what effects, if any, resulted from that inservice noise exposure and otitis media and "cat fever." Favorable to the Veteran's stance is the report of a VA audiology examination conducted in July 2013, at which time the Veteran was clinically evaluated and that evaluation led to entry of diagnoses of bilateral hearing loss and tinnitus. The existence of hearing loss meeting the criteria 38 C.F.R. § 3.385 was confirmed and it was the VA examiner's opinion that it was at least as likely as not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service, considering all potential causes inclusive of noise exposure and inservice ear disturbances. The VA examiner also concluded that the Veteran's tinnitus was at least as likely as not a symptom of his hearing loss, noting that while the Veteran had denied its presence when examined previously but he was without the knowledge of the meaning of the term, tinnitus. Contraindicating entitlement are medical opinions set forth at the time of a VA medical examinations in 2010 and 2012. In December 2010, a VA audiological examination was conducted, at which the Veteran reported that his hearing loss had existed since the 1980s and that he had stopped having earaches in the 1970s. The presence of bilateral severe mixed hearing loss was diagnosed, which the examiner opined was less likely as not caused by military service but more likely caused by recreational firearms use after service, albeit without consideration of the effects of inservice otitis and "cat fever" with earaches. As previously reported by the Board, in its May 2013 remand, further examination of the Veteran's claimed tinnitus followed in February 2012, although full examination data are no longer a part of the virtual file. The Board noted in its May 2013 remand that the VA examiner had reported that the Veteran had previously denied having tinnitus and at least in part concluded that the Veteran's tinnitus was unrelated to service due to such denial. The Veteran, as indicated above, has since offered a credible explanation for that denial, noting that while he was not familiar with the medical term of tinnitus, his ringing or buzzing in the ears had been present for some time. The most recent documentary evidence, as referenced in a supplemental statement of the case (SSOC) of July 2013, is a medical opinion of July 22, 2013, which was obtained without an in-person examination. That opinion is not of record, but as described in the SSOC encompassed a case in which the claimant had sustained a postservice gunshot wound of the head in the area of one ear and for whom service connection had previously been established for diabetes mellitus, with a claim of secondary service connection having been advanced with respect to hearing loss and tinnitus. That opinion clearly entails a claimant other than the Veteran in this case, as there is otherwise no history of any gunshot wound to the Veteran's head or a prior grant of service connection for any disability. As such, that opinion has no bearing whatsoever on the outcome of this matter. In all, there is evidence both supporting and contraindicating entitlement to service connection for hearing loss and tinnitus. On the basis of the discussion outlined above, the record is found to be at least in relative equipoise as to the question of the service incurrence of the Veteran's bilateral hearing loss and tinnitus and, on that basis, grants of service connection therefor are found to be in order. ORDER Service connection for bilateral hearing loss and tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs