Citation Nr: 1336222 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-36 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from May 1962 to August 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2012, the Veteran, seated at the RO, testified before the undersigned Veterans Law Judge, seated in Washington, DC, via videoconferencing (videoconference hearing). A copy of the hearing transcript has been associated with the claims file. The Veteran waived initial RO consideration of evidence that he submitted at the hearing. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss is attributable to acoustic noise trauma during his active military service. 2. The Veteran's current tinnitus is related to the Veteran's active military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for bilateral hearing loss and tinnitus. These awards represent complete grants of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). III. Analysis Bilateral Hearing Loss In regard to element (1), current disability, audiometric testing done at VA examination in August 2009 reflects that the Veteran has hearing loss for VA purposes. See 38 C.F.R. § 3.385. In regard to element (2), in-service incurrence, the Board finds that despite the fact that service treatment records for the Veteran's period of active duty are silent for complaints or findings for hearing loss, the Veteran has introduced credible lay evidence indicating that he experienced acoustic trauma while serving aboard several ships during his nearly two decades of service. This element is satisfied. The evidence relating to element (3), causal relationship, consists of two VA examiners' opinions dating from August 2007 and August 2009, respectively. In an August 2009 VA medical examination report, the August 2009 VA examiner stated that she was unable to provide an opinion regarding the etiology of the Veteran's diagnosed hearing loss disorder without resorting to speculation and provided sufficient rationale for her inability to do so. See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). This opinion weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In an August 2007 VA audiology consultation report, a VA examiner, having heard the Veteran's credible accounts of in-service acoustic trauma, opined that the Veteran's bilateral hearing loss was related to service. There is no contradictory evidence in the file. This element is satisfied. As all three elements have been satisfied, the Board finds that service connection for bilateral hearing loss is warranted. Tinnitus In regard to element (1), current disability, VA treatment records included in the claims file indicate treatment for tinnitus. In regard to element (2), in-service incurrence, the Board finds that despite the fact that service treatment records for the Veteran's period of active duty are silent for complaints or findings for tinnitus, the Veteran's has introduced credible lay evidence indicating that he experienced acoustic trauma since service. In the August 2009 VA medical examination report, the Veteran stated that he was not sure how long he had experienced tinnitus and that he thought that he began noticing it after his discharge from service. However, at the April 2012 videoconference hearing, the Veteran testified that he thought that he had tinnitus dating back to service. The Veteran indicated that he was confused as to the onset date as he initially believed that the ringing in his ears he experienced was a symptom of hearing loss and not a separate disorder. Resolving reasonable doubt it the Veteran's favor, the Board finds that element (2), in-service incurrence, is satisfied. The evidence relating to element (3), causal relationship, consists of a single VA examiner's opinion dating from August 2009. In the August 2009 VA medical examination report, the August 2009 VA examiner stated that she was unable to provide an opinion without resorting to speculation as to the etiology of the Veteran's tinnitus. In explaining this opinion, the VA examiner stated that there was no evidence of the high frequency hearing loss during service which was typically associated with tinnitus due to noise exposure. However, in this opinion, the Board has found that the Veteran experienced such hearing loss during service. Therefore, as the August 2009 VA examiner indicated that the Veteran's current tinnitus was usually associated with such hearing loss, the Board finds that the August 2009 VA examiner's opinion actually satisfies element (3), causal relationship. As all three elements have been satisfied, the Board finds that service connection for tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs