Citation Nr: 1338369 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-27 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio. Jurisdiction was transferred to the Phoenix, Arizona RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence for and against the Veteran's claims of entitlement to service connection for a hearing loss disability and tinnitus is in relative equipoise. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the appellant, service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. Resolving doubt in favor of the appellant, service connection for tinnitus loss is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSIONS A. Duty to Assist The Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claims is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). B. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101, 106, 1110; 38 C.F.R. §§ 3.6, 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has reported that he has developed hearing loss and ringing in his ears, which he believes were caused by in-service acoustic trauma while working on aircraft engines. A DD-214 shows that his military occupational specialty (MOS) was aircraft maintenance, which is consistent with his report of demolition-related noise exposure. Audiological records dated in 2008 show bilateral hearing loss disability consistent with 38 C.F.R. § 3.385. A September 2007 private audiologist determined the Veteran has noise induced hearing loss due to years working on jet planes. Although the audiologist did not make such a direct statement with respect to tinnitus, the Board finds that the subsequent grouping of both hearing loss and tinnitus as diagnoses immediately following that opinion strongly implies that the audiologist intended tinnitus to be encompassed within that etiology opinion as well. During a June 2012 VA examination, the Veteran reported he has bilateral hearing loss that is greater in his right ear which began suddenly about two years prior. He reported constant tinnitus at his right ear that he rated as mild which also began with the sudden onset of his hearing loss. The Veteran served as an aircraft mechanic from 1952 to 1956. Post-military, the Veteran worked in construction for 40 years and wore ear protection. The examiner opined that the Veteran's hearing loss was not likely caused by in-service noise exposure based on its onset. The examiner also noted that tinnitus is not likely caused by or related to his in-service noise exposure as it began many years following his discharge from military service. Given the contradictory opinions, the Board finds that there is an approximate balance of positive and negative evidence regarding whether the Veteran's hearing loss and tinnitus were incurred in or a result of active service. Under the 'benefit-of-the-doubt' rule, where there exists 'an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,' the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In light of the foregoing, entitlement to service connection for hearing loss and tinnitus are granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs