Citation Nr: 1334019 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-08 457 ) 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 disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A notice of disagreement was received in July 2010, a statement of the case was issued in March 2011, and a substantive appeal was timely received in April 2011. Records in the Virtual VA paperless claims processing system and Veterans Benefits Management System have been reviewed and considered. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's current bilateral sensorineural hearing loss disability is related to his military service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's current tinnitus is related to his military service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, bilateral hearing loss disability was incurred in or aggravated by active duty military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). 2. Resolving doubt in favor of the Veteran, tinnitus was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during the Veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. See Hensley, 5 Vet. App. At 159. If the record shows evidence of in-service acoustic trauma and in-service audiometric results indicate an upward shift in tested thresholds, and if post-service audiometric testing results meet the requirements of 38 C.F.R. § 3.385, it must be determined whether there is a medically sound basis to attribute the post-service findings to in-service injury, or whether they are more properly attributable to intercurrent causes. See Hensley, 5 Vet. App. At 159. As for tinnitus, it is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Analysis As an initial matter, the October 2009 VA audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. Moreover, the Veteran is competent to state that he current has tinnitus. In this regard, under Charles v. Principi, the Court of Appeals for Veteran's Claims (CAVC) held that tinnitus is a condition where lay observation has been found to be competent to establish the presence of the disability. 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements of symptoms consistent with a tinnitus disability are credible, as they have been consistent, and accordingly the Veteran's reports of tinnitus are competent to establish a current tinnitus disability. The Veteran contends his current bilateral hearing loss disability and tinnitus are attributable to noise exposure during service. He asserts that his Military Occupational Specialty (MOS) as a firefighter exposed him to significant noise from the trucks' sirens, air horns, and engines. See Veteran's May 2009 statement; October 2009 VA examination report. He has reported that he has experienced hearing loss and tinnitus continuously since service. See May 2009 claim. In his May 2009 statement, the Veteran reported that by the end of his service he "noticed a consistent buzzing in [his] head," but that he did not know what it was and "thought it was something [he] had to live with." At his October 2009 VA examination, the Veteran reported that his bilateral hearing loss disability began in 1970, and that bilateral constant tinnitus began in service. With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma through his MOS as a firefighter. Based on his MOS, the circumstances of the Veteran's service would have exposed him to some acoustic trauma during service. Thus, the Board does not dispute that he likely experienced acoustic trauma during service. See also March 2011 statement of the case (RO conceded acoustic trauma due to Veteran's MOS as a firefighter). As to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and tinnitus and his military service, a private audiologist provided a positive nexus opinion in July 2010 linking the Veteran's current bilateral hearing loss disability and tinnitus to his noise exposure during military service. The audiologist made note of the Veteran's post-service noise exposure through his job in a power plant, and that he previously hunted, but reported that the Veteran stated he had not hunted in many years. She noted that she reviewed the Veteran's DD 214, his service treatment records, his hearing conservation records, and his private treatment records, and then examined the Veteran. The private audiologist opined that based upon her examination and the Veteran's history, it was her professional opinion that the Veteran's bilateral hearing loss disability and tinnitus are more likely than not related to his military noise exposure. She opined that the Veteran's tinnitus can as likely as not be attributed to the same etiology as his hearing loss disability, and that noise exposure without hearing protection can cause and/or contribute to noise-induced hearing loss disability, acoustic trauma, and tinnitus. In contrast, a VA audiologist stated in a October 2009 examination report and her February 2011 addendum opinion that the Veteran's hearing loss and tinnitus were not caused by or a result of his acoustic trauma during service. In the 2011 addendum, the VA audiologist noted that an initial occupational evaluation was completed in August 1982, nearly fourteen years after the Veteran's separation from military service, and noted the Veteran's thirty-eight years of civilian noise exposure. The VA audiologist stated that the private audiologist did not address the role of the Veteran's occupational noise exposure history on the development of his hearing loss disability and tinnitus. The VA audiologist opined that given the Veteran's normal hearing sensitivity bilaterally upon separation from service, and his normal hearing sensitivity bilaterally at all rateable frequencies as late as fourteen years post-service, it is more likely that the Veteran's hearing loss disability and tinnitus are a result of the aging process and/or his thirty-eight years of civilian noise exposure. In addressing the weight of the contrasting opinions, the Board observes that the private audiologist did consider the Veteran's post-service noise exposure in reaching her conclusion, as she reviewed the evidence of record, interviewed the Veteran about his noise exposure, and made note in her letter opinion of the Veteran's noise exposure through his job in a power plant as well as through hunting. The positive and negative nexus opinions are both provided by audiologists, their opinions include a detailed rationale for their conclusions, and their conclusions are supported by the evidence of record. Both the private and VA audiologists reviewed all the evidence of record, and interviewed and examined the Veteran. As such, the Board finds the positive and negative nexus opinions are of equal probative value, and thus the medical evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss disability and tinnitus were caused by or related to his acoustic trauma in service. After a review of the evidence of record as a whole, the medical and lay evidence for and against the claims of service connection is at least in equipoise. Accordingly, the benefit of the doubt rule applies, and service connection for bilateral hearing loss disability and tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs