Citation Nr: 1334594 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-20 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The evidence indicates that the currently diagnosed bilateral sensorineural hearing loss is related to service. 2. The evidence indicates that the currently diagnosed tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claim Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. I. Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted during active military service. 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 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, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Facts and Analysis The Veteran was afforded a VA examination in July 2010. The examiner conducted a full audiological examination of the Veteran, which included an interview and audiogram. During the interview, the Veteran reported military noise exposure from small arms fire during training and while on convoys in Vietnam. The Veteran also reported occupational noise exposure as a truck driver. The Veteran complained of tinnitus, but could not specify a specific acoustic event giving rise to his condition. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 45 60 LEFT 10 10 15 30 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed the Veteran with tinnitus and high frequency sensorineural hearing loss. The results of the July 2010 audiogram show that at least one of the auditory thresholds in both ears was 40 decibels or more. The Veteran has a diagnosis of left ear hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran served as a radio operator during service. Additionally, the Veteran reported that he was exposed to the sounds of small arms fire during training and while serving in Vietnam. The Veteran is competent to report of a history of in-service noise exposure. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). His assertions are credible as they are consistent with his documented military service in Vietnam. Further, the RO has acknowledged the RO's military noise exposure. The Veteran's exposure to excessive noise in service is conceded. The Veteran's service treatment records do not reveal complaints of hearing loss during service and there is no documented diagnosis of bilateral hearing loss during service. The Veteran's February 1968 entrance examination reveals pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran's separation examination consisted of a whisper test, which was normal. A medical nexus between service and hearing loss diagnosed after service is not precluded by the lack of audiometric data reflecting hearing loss for VA purposes on separation from service. Service connection may be established by evidence that the current hearing loss is causally related to service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A VA opinion was provided in July 2010. The examiner opined that the Veteran's bilateral hearing loss and tinnitus are less likely than not due to noise exposure in service because the Veteran's service treatment records make no mention of hearing loss or tinnitus. The examiner explained that this is a strong indicator that neither hearing loss nor tinnitus were considered significant issues during service. The examiner also explained that the combined effects of the Veteran's post military noise exposure with the possible aggravation from his military experience resulted in hearing loss that is not considered disabling, but rather annoying in poor acoustic environments. The evidence unfavorable to the claim for service connection in this case consists of the service separation examination report which contains no mention of hearing loss and the July 2010 negative VA opinion. Whispered voice testing is insensitive to high frequency hearing loss which is the area of hearing most affected by noise exposure. The separation examination is of no probative value as to whether the Veteran experienced hearing loss during service. Likewise, the July 2010 VA opinion is of no probative value. The examiner's rationale concluded that the combined effects of the Veteran's military and post military noise exposure resulted in hearing loss; however, this conflicts with the opinion that the Veteran's hearing loss and tinnitus are not related to military noise exposure. Furthermore, the rationale relied on the lack of treatment records documenting complaints of hearing loss and tinnitus in service to conclude that the Veteran did not experience significant hearing problems during service. The lack of such records does not in and of itself, render the Veteran's statements regarding the onset of his hearing loss and tinnitus not credible. Buchanan v. Nicholson, 451 F.3d, 1351 (Fed. Cir. 2006). In a statement received October 2010, the Veteran maintains that he began experiencing hearing loss and tinnitus in service and that it continues to this day. The Veteran is competent to report on when his hearing loss and tinnitus started as these symptoms are readily observable to him. The Board finds no reason to doubt the Veteran's credibility. See Jandreau, 492 F.3d at 1377; Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Layno, 6 Vet. App. at 469-70; see also 38 C.F.R. § 3.385. The evidence for and against the Veteran's claims is, at the very least, at least in equipoise. The Board will resolve any doubt in the Veteran's favor and find that service connection is warranted for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs