Citation Nr: 1336293 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-19 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral hearing loss is etiologically related to noise exposure during active military service. 2. Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to noise exposure during active military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) To establish service connection, there must be: (1) competent and credible evidence of a diagnosis of a current disability; (2) competent and credible evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran claims that he was exposed to acoustic trauma during service that resulted in bilateral hearing loss and tinnitus. His military occupational specialty was aircraft mechanic. The Board finds that the Veteran is competent to report that he experienced noise exposure in service and that he has experienced hearing loss and tinnitus since service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). Further, the Board finds the Veteran's reports of in-service noise exposure credible as such are consistent with his years of service in the aviation field. Accordingly, the Veteran's in-service exposure to acoustic trauma is acknowledged. The Veteran's service treatment records (STRs) generally document increasing levels of hearing loss in service. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Veteran's STRs reflect that, upon enlistment in September 1962, his pure tone threshold values were as follows (converted to ISO units as shown in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) -5 (5) 0 (10) 0 (5) LEFT 0 (15) -5 (5) -5 (5) -5 (5) -10 (-5) The Veteran's STRs include two audiograms performed upon separation in July 1966. Pure tone thresholds were as follows: Test 1 HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) 0 (10) 0 (10) 15 (20) LEFT 5 (20) 0 (10) 0 (10) 0 (10) 15 (20) Test 2 HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) - - 20 (25) LEFT 5 (20) 0 (10) - - 20 (25) The Veteran's STRs also include an audiogram conducted at a March 1967 Air National Guard enlistment examination. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 10 (20) 10 (20) 15 (20) LEFT 5 (20) 5 (15) 10 (20) 15 (25) 15 (20) The Veteran was afforded a December 2010 VA audiological examination. This report shows that the Veteran currently has tinnitus and bilateral sensorineural hearing loss pursuant to 38 C.F.R. § 3.385. The examiner opined that the Veteran's hearing loss is less likely as not related to his military service because he had normal hearing upon separation from service. The examiner also opined that it is less likely as not that the Veteran's tinnitus is related to his military service because he reported to her that the onset of his tinnitus was 10 years prior to the examination. She further stated that the Veteran's tinnitus is as likely as not a symptom associated with his hearing loss. The examiner noted that she reviewed two audiological reports contained in the Veteran's STRs-a September 1962 enlistment examination and a July 1966 separation examination. In October 2013, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). In the opinion request, the Board observed that the December 2010 VA examiner did not note that there was an apparent threshold shift between the Veteran's September 1962 enlistment examination and his July 1966 separation examinations. Moreover, she did not acknowledge that the in-service audiometric readings had not been converted from ASA to ISO units. Further, when converted from ASA to ISO units, the Veteran's separation examinations reflect abnormal hearing in the 500 and 5000 Hertz frequencies. Accordingly, it was requested that upon a review of the claims file, to specifically include the aforementioned service treatment records, VA opinion, and the Veteran's lay statements, the expert offer an opinion as to whether the Veteran's hearing loss and tinnitus were related to his military service. The expert was specifically requested to discuss the significance, if any, of the apparent threshold shift between the Veteran's September 1962 enlistment and July 1966 separation examinations. In late October 2013, the expert, a VA doctor of audiology, responded by disagreeing with the opinion provided during the December 2010 VA examination. The expert stated: Although hearing was within normal limits at the time of military discharge, a review of the [claims] file indicated that [the] veteran suffered a significant threshold shift during military service. The hearing threshold reported on the 1966 separation physical indicated a significant threshold shift when compared to the 1962 enlistment physical. . . . A significant, permanent threshold shift should be considered as evidence of noise injury. The expert further explained: Tinnitus is most often associated with hearing loss and noise exposure. In the Veteran's 1/14/2011 Statement in Support of Claim he described excessive noise exposure as a jet aircraft mechanic and described momentary hearing loss and a continual ringing in his ears during military service. . . . The service treatment records documented a permanent threshold shift in the frequency range most often associated with hearing loss due to noise exposure, consistent with the Veteran's 2011 statement in support of his claim. It is as likely as not that [the] Veteran's hearing loss began during military service and that his reported tinnitus is a symptom of the hearing loss. The Board finds the October 2013 expert VA opinion to be the most probative and persuasive evidence on file. The October 2013 expert gave a thorough opinion and discussed the apparent threshold shift between the Veteran's entrance and separation examinations. The December 2010 VA opinion is entitled to less probative value because it did not address the apparent threshold shift and did not note that the Veteran's separation examinations reflect abnormal hearing in the 500 and 5000 Hertz frequencies when converted from ASA to ISO units. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Therefore, with resolution of all doubt in the Veteran's favor, the Board finds that his bilateral hearing loss and tinnitus are etiologically related to noise exposure during active military service. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs