Citation Nr: 1333594 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-29 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from October 1993 to October 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2012, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In February 2013, the Veteran's claims were remanded by the Board for additional development. The case has now been returned to the Board for review. FINDINGS OF FACT 1. The evidence is at least in relative balance as to whether the Veteran's right ear hearing loss is etiologically related to active service. 2. The Veteran's tinnitus is causally related to his service-connected right ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus on a secondary basis are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for right ear hearing loss and tinnitus. This represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance with this issue is deemed to be harmless error and any further discussion of VA's responsibilities is not necessary. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). To establish service connection for a present disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). 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 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 (2013). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that his hearing loss is related to active service. Concerning evidence of a current disability, the VA audiogram performed in connection with the February 2013 VA examination reflects a right ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Accordingly, the Veteran has a current disability. With respect to evidence of incurrence of an in-service disease or injury, the service treatment records do not reflect treatment or findings of hearing loss during active service. Nonetheless, the Veteran has attested to being exposed to being exposed to noise during his period of active service. The DD Form 214 reflects that the Veteran's military occupational specialty (MOS) was "track vehicle repairer." The Veteran testified that he was exposed to noise from loud vehicle equipment, firing ranges on the tank range, and typical shop noise involving hammers and power tools. He stated that he had to sometimes go out on the range and fix equipment while other tanks were shooting. The Board finds the Veteran competent and credible to attest to his noise exposure and there is no evidence to question the veracity of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board accepts the lay statements of in-service noise exposure as evidence that he was exposed to acoustic trauma during service and, therefore, the requirement for an in-service injury has been met. With respect to the etiology of the Veteran's right ear hearing loss, the Veteran was provided two VA examinations. The Veteran was provided a VA examination in May 2010. In the February 2013 remand, the Board found the examiner's opinion to be inadequate as the examiner concluded that the hearing loss and tinnitus were not caused by or a result of active service because all three hearing tests performed during military service were normal. The Veteran was provided another VA examination in February 2013. The examiner reviewed the claims file and opined that the Veteran's hearing loss was at least as likely as not caused by or a result of an event in military service. The examiner explained that the primary noise exposure he experienced has been while in the military and reserves. The examiner noted that there were no audiological exams located for his time in the reserves from 1996 to 2001. The examiner stated that the hearing loss was predominantly in the right ear and that his former occupation as a truck driver would logically affect the left ear, not the right. The Board finds the VA examiner's opinion to be persuasive as the examiner explained the reasons for the positive opinion by noting that the Veteran's primary noise exposure was in the military and reserves. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). Thus, the Board finds that the evidence is at least in relative balance as to whether the Veteran's right ear hearing loss is etiologically related to active service. While the Board acknowledges that the February 2013 VA examiner related the Veteran's right ear hearing loss to his noise exposure in the military and the reserves, the Board finds that the opinion is nonetheless persuasive as it does relate the Veteran's right ear hearing loss to noise exposure during active service. In resolving the benefit of the doubt in favor of the Veteran, the Board finds that right ear hearing loss is etiologically related to active service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection for right ear hearing loss is warranted. Having determined that service connection for right ear hearing loss is warranted, the Board also finds that service connection is warranted for the Veteran's tinnitus. The February 2013 VA examination report shows that the Veteran is diagnosed with tinnitus. However, the Veteran has been inconsistent with his reports of the onset of his tinnitus. With respect to etiology, the Board recognizes that the February 2013 VA examiner did not provide an opinion as to the etiology of the Veteran's tinnitus. However, while the May 2010 VA examiner's opinion was inadequate with respect to direct service connection, the examiner also opined that the Veteran's tinnitus was "as likely as not" a symptom associated with the hearing loss. See also The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems, and Section 7, Ch. 85, Inner Ear. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). See Allen, 7 Vet. App. at 448. The evidence shows that a current disability of tinnitus exists. The probative evidence of record demonstrates that tinnitus was proximately caused by the Veteran's hearing loss, as it is a symptom of the Veteran's hearing loss, which the Board has found to be service-connected. Therefore, resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus on a secondary basis is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs