Citation Nr: 1336690 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 13-10 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from April 1979 to May 1981. The Veteran also had service in the Navy Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is as likely as not related to his active service. 2. The Veteran's tinnitus is as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this decision, the Board grants service connection for bilateral 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. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). To establish service connection on a direct incurrence basis, 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). In addition, certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). The Veteran asserts that he has bilateral hearing loss and tinnitus as a result of his service on the USS Gridley. He states that the disabilities are due to his active service because he was exposed to loud noise in the performance of his duties. Specifically, he was exposed to noise using tools to chip paint, noise generated by the hydraulic system turning rudders and noise from monitoring the power supply in the engine room. Thus, the Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. The Veteran's service treatment records are determined to be unavailable in this case. As such, there is a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46, 51 (1996). The evidence of record supports a finding that the Veteran sustained exposure to loud noises while in service. Specifically, the Veteran's DD 214 documents that he was last assigned to the USS Gridley. Additionally, his specialty number was EM-0000, Engineer's Mate. As the evidence of record is supportive of the Veteran's competent and credible contentions regarding his exposure to loud noise, the element of the incurrence of an in-service injury is met for tinnitus and hearing loss. The Veteran was afforded a VA audiological examination in November 2010, during which he reported noise exposure from the engine room, paint chippers and other maintenance equipment on board the Navy ship. He also reported some post-service noise exposure from work in the oil fields and as an electrician. The November 2010 VA examiner provided diagnoses of bilateral sensorineural hearing loss and tinnitus. Audiometric testing revealed that the Veteran has bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Thus, the current disability element of both claims is established by the evidence. The question remaining for consideration is whether the Veteran's current disabilities of hearing loss and tinnitus are related to the in-service noise exposure. As to the origin of the Veteran's hearing loss, the November 2010 VA examiner stated that without the Veteran's military audiometric information to review, it was not possible to determine the amount of hearing lost as a result of military acoustic trauma. The November 2010 VA examiner further stated that given the years of civilian work in a noisy environment, one could only speculate that the hearing loss and tinnitus are a result of military acoustic trauma. Thus, while the November 2010 VA examiner concluded that speculation would be required to attribute the Veteran's hearing loss and tinnitus to military acoustic trauma, the examiner provided a rationale as to why a definitive opinion could not be provided. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Notably, the November 2010 VA examiner did not rule out the possibility that the noise exposure during service resulted in the Veteran's hearing loss and tinnitus. Moreover, the November 2010 VA examiner appeared to attribute the Veteran's bilateral hearing loss and tinnitus to noise exposure. The Veteran described that his hearing deteriorated during service and that he has experienced tinnitus consistently since his service. Specifically, he stated that he experienced ringing and echoing in his ears as well as temporary loss of hearing after standing watch in the engine room during February 1980 to May 1981. He also stated that he took two hearing tests while on active duty and was told he had hearing loss and was subsequently issued hearing protection. He recalled that after the first hearing test, he was told he had damage in one ear and after the second test he was told he had damage in both ears. He also stated he took hearing tests while in the Navy Reserve, which revealed hearing loss in both ears. The Veteran is competent to testify as to observable symptoms such as hearing difficulty and ringing in the ears, because these symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's statements regarding the onset of his symptoms pertaining to his hearing difficulty and tinnitus to be credible and they are accorded significant evidentiary weight. Moreover, in August 2010, a private examiner opined that it is reasonable to suggest that the Veteran's hearing loss was caused or worsened by repeated high level noise exposure during service from the engine room. The Veteran also submitted, a February 2013 statement from his brother, in which his brother stated that he first noticed the Veteran developed problems hearing while in the Navy. Specifically, he noticed that the Veteran could not hear other people speaking, the phone or the doorbell ringing. Thus, the Veteran's credible statements, combined with other evidence regarding his disabilities, are sufficient to outweigh the opinion of the November 2010 VA examiner. At the least, this evidence raises a reasonable doubt as to whether the Veteran's current bilateral hearing loss and tinnitus are etiologically related to noise exposure in service. When resolving doubt in the Veteran's favor, the Board finds that the two disabilities are in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Thus, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs