Citation Nr: 1339912 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 11-09 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1977 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In his substantive appeal, the Veteran requested a hearing at a local VA office. The RO notified the Veteran that a hearing had been scheduled for November 2011 through letters addressed to him at his last known address in October 2011 and November 2011. The letters were not returned as undeliverable. The Veteran's appointed state service organization was also sent copies of the hearing notice. The Veteran failed to appear for this hearing. To the Board's knowledge, the Veteran has offered no explanation as to why he failed to appear for the scheduled hearing, and he has not requested that it be rescheduled. Accordingly, the Board will proceed to a decision on this appeal as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to service connection for a left ankle disorder has been raised by the record. Specifically, VA medical records dated in March 2011 show that the Veteran's doctor reported that the Veteran's traumatic arthropathy of the left ankle began prior to military service, but was probably aggravated while in the military due to recurrent sprains. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has bilateral hearing loss that is related to his military service. 2. The Veteran has tinnitus that is related to his bilateral hearing loss. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, tinnitus is proximately due to or the result of his service-connected bilateral hearing loss. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 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 discussion is necessary regarding the Veterans Claims Assistance Act of 2000 and the implementing regulations. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted 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). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss and tinnitus. The Veteran's service treatment records show that he was provided an audiogram in August 1977 upon entry into service. This audiogram showed mild to moderate hearing loss of the left ear for medical purposes, but he did not meet the standards for hearing loss under VA law and there was no mention of tinnitus. 38 C.F.R. § 3.385. As such, hearing loss and tinnitus were not noted upon entry to service, and the presumption of soundness applies. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). There are no other service treatment records documenting further audiological testing. The Veteran has claimed that his current bilateral hearing loss and tinnitus are related to his noise exposure while serving as a military facilities specialist. The Veteran has testified that he was exposed to such noise during his duties issuing supplies to the flight line, operating vehicles and forklifts in the delivery and binning of supply items in a warehouse, operating fuel supply vehicles and generators, which refueled jet aircraft on the flight line, and in firing rifles and machine guns on active duty. A DD-214 indicates that the Veteran was a material facilities specialist, and additional service personnel records submitted by the Veteran support his testimony that he worked as a fuel storage operator and was trained in flight line security. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). There is also no reason to doubt his credibility. Currently, the Veteran has been diagnosed with bilateral hearing loss and tinnitus by his private healthcare providers, Dr. J.M., Dr. T.A., and Dr. M.R. (initials used to protect privacy). A December 2010 VA examination also shows that the Veteran's hearing loss meets VA standards for a current disability pursuant to 38 C.F.R. § 3.385. Thus, the remaining question pertaining to service connection is whether the Veteran's current bilateral hearing loss and tinnitus are related to his military noise exposure. The Board notes that there are conflicting medical opinions of record with regard to the etiology of the Veteran's bilateral hearing loss and tinnitus. After an initial review, the Board found that these medical opinions were inadequate. As such, the Board obtained a VHA opinion in September 2013. The VHA examiner noted that the Veteran's service treatment records were silent with regarding to both hearing loss and audiological testing, except for the August 1977 entrance examination. She also noted that the Veteran had a 30 year history of noise exposure as a civilian in the police department. She then opined that in this case she would err on the side of the Veteran and opine that the Veteran's bilateral hearing loss was due to his military noise exposure while in service. In support of this opinion, she indicated that the Veteran's current hearing loss is one that is typically seen as a result of repeated noise exposure. The VHA examiner further opined that tinnitus is often a symptom associated with hearing loss. Thus, she found that it was as likely as not that the Veteran's tinnitus was a symptom of his bilateral hearing loss. The Board finds that the VHA opinion is the most probative medical opinion of record, as that the opinion was based on the examiner's education, training, and experience; addressed all relevant issues; and provided adequate medical opinions with supporting rationale. Accordingly, the Board concludes that service connection is warranted for bilateral hearing loss and tinnitus. ORDER Subject to the provisions governing the award of monetary benefits, service connection for bilateral hearing loss is granted. Subject to the provisions governing the award of monetary benefits, service connection for tinnitus is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs