Citation Nr: 1337531 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-23 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Ozger, Associate Counsel INTRODUCTION The Veteran had active service from October 1969 to September 1971. These matters come before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to service connection for bilateral hearing loss and tinnitus. The claims file shows that the Veteran was scheduled for a September 2012 Travel Board hearing. In July 2012, the Veteran withdrew his request for a hearing. A review of the Virtual VA paperless claims processing system (Virtual VA) does not reveal additional records that are pertinent to the Veteran's claims. FINDINGS OF FACT 1. Bilateral hearing loss is causally related to noise exposure during active service. 2. Tinnitus is causally related to noise exposure during active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein are completely favorable to the Veteran, no further action is required to comply with the VCAA and implementing regulations. II. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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 (2013). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 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. Hensley, supra at 159; see also Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. III. Analysis The Veteran contends that his bilateral hearing loss and tinnitus were incurred as a result of his exposure to loud noise from weapons during his active military service. The Board finds that the evidence is at least in equipoise in this case. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (2002); 38 C.F.R. § 3.102. As an initial matter, the Board notes that audiometric testing results from a November 2009 private audiological examination and an August 2010 VA examination show bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. Moreover, the reports of the November 2009 private examination and August 2010 VA examination reflect a diagnosis of tinnitus. Therefore, because bilateral hearing loss and tinnitus have been diagnosed, the first element under Shedden, which is the existence of a present disability, is met as to each claim. The Board concludes that the second element of Shedden, which is the in-service incurrence or aggravation of a disease or injury, is also met. The Veteran's service treatment records are negative for evidence of a hearing loss disability or tinnitus. However, the Veteran has claimed he incurred in-service exposure to excessive noise from guns and loading large weapons without the aid of hearing protection. In this respect, the Veteran's claims of in-service noise exposure are bolstered by his DD-214 Form, which lists his Military Occupational Specialty (MOS) as an indirect fire infantryman and qualification as an M-16 Sharpshooter. In light of this evidence, the Veteran is found to have been exposed to excessive noise during his active military service, and in giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). As a result, the second element of Shedden is satisfied as to both claims. In addition to the first two elements of Shedden, however, a finding of a nexus between the Veteran's current bilateral hearing loss or tinnitus and in-service noise exposure is still needed to satisfy Shedden's third element. The record reflects two nexus opinions which the Board will address in turn. In favor of the Veteran's claims is the opinion of L. H., the private audiologist who conducted the November 2009 audiological evaluation. According to L. H., "[i]t is at least as likely as not that the hearing loss and tinnitus that [the Veteran] experiences today is a result of noise exposure on active duty. It is consistent with what I would expect to see given the military circumstances." By contrast, after a review of the claims file, the August 2010 VA examiner opined that the Veteran's hearing loss and tinnitus were less likely as not related to noise exposure while in the military. In providing this opinion, the VA examiner noted that the separation examination showed "normal hearing thresholds bilaterally," that the Veteran "only noticed hearing difficulties for the past 20 years and tinnitus for only the past 10 years," and that the Veteran had a 35-year history of post-service occupational noise exposure. The August 2010 VA opinion is of limited probative value. The examiner did not take into account the Veteran's lay statements regarding his noise exposure in service, and his use of hearing protection during the jobs he held after his military service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In his substantive appeal, the Veteran stated that although his post-military service employment exposed him to loud noises, he was required to wear "hearing protection, either ear plugs or the ear muff type; depending on how loud the noise was." In contrast, the Veteran stated that he was not required to wear hearing protection while he was handling weapons in service. As the VA examiner failed to address these pertinent statements in providing the nexus opinions, the opinions are inadequate. Concerning the November 2009 private opinions, the Board recognizes that this examination report is silent with regard to whether the private audiologist reviewed the claims file. However, the report reflects that the nexus opinions were rendered based on factually accurate information and thus, the opinions are not without probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes to the probative value to a medical opinion). Moreover, the opinions are consistent with the credible lay statements of record. Finally, it appears that the private examiner was apprised of the facts pertinent to the claim because the rationale of the examiner refers to the "military circumstances" experienced by the Veteran. As a result, the Board concludes that the private exam has probative value. As such, the nexus element has been met. The Board finds that the Veteran's bilateral hearing loss and tinnitus are related to the Veteran's exposure to excessive noise during his active military service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, service connection for bilateral hearing loss and tinnitus is warranted, and the claims are granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs