Citation Nr: 1340762 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-22 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1979 and had service in the Army National Guard from October 1982 to May 1988. These matters were received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. They are on appeal from an April 2010 rating decision. In April 2012, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's bilateral hearing loss and tinnitus are related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in a December 2009 statement, his August 2011 substantive appeal, and his testimony during his April 2012 Board hearing, the Veteran contends that he was exposed to noise during his period of active duty as a naval gunfire spotter who was cross-trained as an artillery spotter, which involved exposure to naval gunfire and artillery fire. He also asserts that he was exposed to normal military rifle range and pistol range fire, and that ringing in his ears began in 1978 after being in a bunker hit with live fire. He further asserts that he was exposed to noise during his service in the Army National Guard, and that he did not know about his hearing loss until approximately 2004 when he was tested after joining the fire department. He testified that he was exposed to noise in his civilian occupations after service, but not to very loud noise as he was in the military. Considering the pertinent evidence in light of the governing legal authority, the Veteran's claims must be granted. As reflected in a January 2010 VA examination report and an April 2011 private audiological evaluation report, the Veteran has a hearing loss for VA purposes. See 38 C.F.R. § 3.385. Also, service personnel records reflect that the Veteran served as a shore fire control party man, and service treatment records reflect that in November 1976 he was treated for some diminished hearing and was issued medical earplugs. A November 1977 audiological evaluation report also reveals diminished hearing compared to that tested on August 1975 enlistment examination. Thus, the Board finds the Veteran's assertions of exposure to loud noise in service to be credible. The medical opinion evidence regarding whether the Veteran's hearing loss and tinnitus are related to service is conflicting. The report of a January 2011 VA examination reflects the examining audiologist's opinion that the Veteran's hearing loss and tinnitus were less likely than not caused by or a result of noise exposure during service. The examiner stated that the Veteran's service treatment records showed that his separation physical audiogram revealed improved hearing in comparison with enlistment, and that service treatment records were negative for complaint of tinnitus during active duty service. The examiner further noted that the Veteran subsequently worked in potentially hazardous noise environments after service. An April 2011 letter from a private otolaryngologist reflects the opinions that the Veteran's tinnitus was due to his severe sensorineural hearing loss, and that tinnitus and hearing loss were caused by or a result of a history of loud, concussive noise exposure encountered during service. The Board notes that the January 2010 VA examiner reviewed the claims file, while it is unclear what records were reviewed by the April 2011 physician. However, given the Veteran's history of loud, concussive noise exposure in service, which the Board finds credible, the April 2011 physician made a reasonably informed opinion based on an accurate factual premise. Also, the April 2011 opinion was from an otolaryngologist, rather than an audiologist, which adds probative value to the opinion. Furthermore, while the January 2010 VA examiner's opinion was based, in large part, on the Veteran's hearing test at separation from service, the VA examiner did not explain in such opinion the Veteran's worsened hearing in November 1976 leading to the issuance of medical ear plugs or his worsened hearing in November 1977. The Board also notes that the Veteran denied any history of hearing loss during October 1982 and November 1987 service examinations, and did not report any tinnitus on these or other examinations until January 2010. However, the record does not reflect that the Veteran ever denied having tinnitus, and he concedes that he only became aware of his hearing loss when tested in 2004. Even considering the evidence weighing against the Veteran's claims, given his exposure to very loud, concussive noise in service, the in-service audiological test results in November 1976 and November 1977, which led to the issuance of medical ear plugs, and the April 2011 opinion of the private otolaryngologist, the Board finds the evidence as to whether the Veteran's current hearing loss and tinnitus are related to service to be in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral hearing loss and tinnitus are related to service. Accordingly, service connection for bilateral hearing loss and tinnitus must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Finally, 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs