Citation Nr: 1340319 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-29 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right-ear hearing loss disability. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to an initial rating for bilateral hearing loss in excess of 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The April 2009 rating decision denied service connection for a right ear hearing loss disability and for bilateral tinnitus, and granted service connection for a left ear hearing loss disability with an initial evaluation of 10 percent. The Veteran has appealed all three issues. As will be discussed, the Board has granted service connection for a right ear hearing loss disability, and as a result the Veteran's claim for an initial rating for a left ear hearing loss disability in excess of 10 percent must be remanded for reconsideration as a claim for an initial rating for bilateral hearing loss in excess of 10 percent. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence. The issue of an initial rating for bilateral hearing loss in excess of 10 percent is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence supports a finding that the Veteran's right ear hearing loss disability was incurred in service. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran's tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The Veteran's right ear hearing loss disability was incurred in active duty military service. 38 U.S.C.A. §§ 1110, (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). 2. The Veteran's tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for a Right Ear Hearing Loss Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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, or 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 (2012). A right ear hearing loss disability is not noted on the Veteran's service entrance examination. While audiometric findings at the time of his service separation examination revealed auditory thresholds less than 40 at 500, 1000, 2000, and 3000 Hertz, the Veteran had a 40 decibel loss at 4000 Hertz. With one threshold at 40 decibels or greater, the criteria for a hearing loss disability is met at the time of the Veteran's service separation. Post service treatment records continue to show a hearing loss disability in the right ear. As the Veteran did not have a hearing loss disability upon entrance into service, and had a hearing loss disability upon separation from service, the Board concludes that the Veteran's current hearing loss disability is related to his active duty service. As a result, service connection for a right ear hearing loss disability is warranted. Service Connection for Bilateral Tinnitus The general service connection requirements outlined above apply to the Veteran's bilateral tinnitus claim. In addition, service connection may be awarded for certain chronic diseases, such as organic diseases of the nervous systems based on a continuity of symptomatology since service. 38 C.F.R. §§ 3.303(a) and (b); 3.307. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has a current diagnosis of bilateral tinnitus. In addition, the Veteran as an Aircraft Fuel Systems Mechanic was undoubtedly exposed to loud noise during service. The Veteran has been somewhat inconsistent with respect to his allegations of when the bilateral tinnitus began. The Veteran is competent to testify as to the onset of symptoms related to tinnitus, but he was not provided a precise date within the presumptive period. However, in the Veteran's August 2011 VA examination the examiner seems to associate the Veteran's tinnitus with his service connected bilateral hearing loss disability. After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability and tinnitus cannot be disassociated from each other or his in-service exposure to noise. Thus, the medical and lay evidence for the claims and the evidence against the claims are at least in equipoise. Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right-ear hearing loss disability is granted, and as a result service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for bilateral tinnitus is granted. REMAND Higher Evaluation for Hearing Loss Disability As the Board has granted service connection for the Veteran's right ear hearing loss disability, the RO will assign an initial evaluation for this disability. In as much as the evaluation assigned for the Veteran's hearing loss will now be based on bilateral impairment, the issue of entitlement to a higher evaluation for left hearing loss disability is intertwined with the assignment of the initial evaluation for his right ear. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to submit additional evidence or argument in furtherance of his claim with respect to a higher initial rating for bilateral hearing loss disability. All records and responses received should be associated with the claims file, and any indicated development should be undertaken. 2. Thereafter, readjudicate the remanded claim of entitlement to a higher initial rating for bilateral hearing loss de novo. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his authorized representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs