Citation Nr: 1339488 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 13-10 470 ) DATE ) ) Recieved 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: Julie L. Glover, Attorney ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from November 1968 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, 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, 1110, 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. §§ 1110, 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 its duties to notify and assist 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. § 1110 (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 during the Vietnam Era. He stated that the disabilities are due to service because he was exposed to loud noise in the performance of his duties during combat. The Veteran stated that he was exposed noise from rifles, artillery and aircraft bombings. The Veteran described, a February 1970 incident, in which a rocket propelled grenade exploded into the berm that he was behind, which caused short term hearing loss and tinnitus. Additionally, the Veteran described another incident, in May 1970, in which he and several others were ambushed by rockets and heavy fire. The Veteran stated that the noise from this firefight was significant. Finally, the Veteran detailed an incident, in June 1970, in which an explosive device was detonated 10 feet from his bunker. The Veteran stated this explosion created a deafening noise. He further stated this incident affected his hearing and that he has experienced ringing in his ears ever since this incident. Thus, the Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. The Veteran's service treatment records do not reference noise exposure, hearing loss or tinnitus. Additionally, service entrance and separation examinations, with audiometric testing, are not associated with the claims file. Nevertheless, the Veteran's DD 214 documents that he served during the Vietnam Era and that he was awarded the Vietnam Service Medal, Bronze Star Medal and Combat Infantryman Badge, among other awards. Based on this information, the Veteran's contentions of in-service noise exposure are deemed consistent with the circumstances and conditions of his service, and thus, exposure to loud noise is established by the evidence, notwithstanding that there is no official record of such incurrence during service. 38 U.S.C.A. § 1154(b). The Veteran was afforded VA audiological examinations in June 2011 and August 2012. The June 2011 VA audiometric testing revealed that the Veteran had a hearing loss disability for VA purposes in the right ear. See 38 C.F.R. § 3.385. The August 2012 VA examiner provided diagnoses of bilateral sensorineural hearing loss and tinnitus. The August 2012 VA audiometric testing revealed that the Veteran had hearing loss disability for VA purposes in both ears. Id. It was also noted that the Veteran had recurrent tinnitus. 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 June 2011 VA examiner opined, in an addendum to the June 2011 examination, that without the Veteran's entrance and exit examinations, an opinion for service connection for hearing loss would be based on speculation. The June 2011 examiner also stated that the cited evidence does not show findings related to tinnitus. The August 2012 VA examiner opined that without accurate audiometric data, regarding the Veteran's hearing status prior to enlistment and following active service, it is impossible to provide an opinion as to whether the Veteran's hearing loss is related to his military service without resorting to mere speculation. The August 2012 VA examiner also stated that an opinion regarding the etiology of the Veteran's tinnitus, without audiometric data, as with the opinion regarding the etiology of the hearing loss, would be based solely on mere speculation. Thus, while the VA examiners concluded that speculation would be required to attribute the Veteran's hearing loss and tinnitus to active service, the examiners 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 neither the June 2011 VA examiner nor the August 2012 examiner, ruled out the possibility that the noise exposure during service resulted in the Veteran's hearing loss and tinnitus. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Leford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Notably, the June 2011 VA examiner did not note any occupational or recreational noise exposure experienced by the Veteran. Additionally, at the August 2012 examination, the Veteran only reported recreational noise from power tools or lawn mowers, but denied any occupational noise exposure. Furthermore, the Veteran described incidents in service that impacted his hearing, and produced tinnitus. The Veteran has consistently stated that he has experienced hearing loss and tinnitus since his service. Specifically, he stated, at the June 2011 VA examination, that tinnitus onset a long time ago. During the August 2012 examination, he reported that tinnitus onset after a rocket propelled grenade explosion in 1970. He also provided credible statements, described above, detailing incidents during service, in which his hearing was affected. 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, VA treatment records, dating back several years, document that the Veteran has experienced hearing difficulties. Thus, the Veteran's credible statements, combined with other evidence regarding his disabilities, are sufficient to outweigh the opinions of the June 2011 and August 2012 VA examiners. 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