Citation Nr: 1343385	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  11-04 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


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 spouse


ATTORNEY FOR THE BOARD

Terrence T. Griffin, Counsel
INTRODUCTION

The Veteran served on active duty from January 1949 to June 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the St. Petersburg, Florida, Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge in October 2013 and a transcript of the hearing is of record.

Pursuant to 38 C.F.R. § 20.900(c) (2013), the appeal has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Bilateral hearing loss had its onset during combat in Korea.  

2.  Tinnitus is caused by service-connected bilateral hearing loss.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board is granting in full the benefits sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.   

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  

The Veteran's complete service treatment records are not available because they are fire-related; however, available service treatment records are negative for any hearing impairment or tinnitus related complaint/treatment. 

Bilateral hearing loss

On VA examination in December 2009, the Veteran demonstrated speech recognition scores and pure tone thresholds, in decibels, as follows:


HERTZ
CNC

500
1000
2000
3000
4000
%
LEFT
85
80
85
85
75
81.25
RIGHT
60
65
80
80
85
77.5

The examiner diagnosed bilateral hearing loss.  The results of the audiogram bilaterally reflect more than one auditory threshold greater than 40 decibels; therefore, the Veteran bilaterally has a hearing impairment disability for VA purposes.  38 C.F.R. § 3.385.  

Citing the Veteran's need for hearing aids approximately 8 years after separation; a history of service and post-service acoustic trauma; and a history of health problems possibly causing hearing impairment, the examiner stated that an opinion could not be provided without resorting to speculation.  

The Veteran provides a competent and credible account of combat related acoustic trauma and of persistent hearing impairment symptomatology since separation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran's account as to these matters has been virtually unchanged and candid, including admitted post-service acoustic traumas.  Moreover, the Veteran married his spouse less than one year after separation and she provides a generally consistent account of his post-service hearing impairment symptomatology.  Further, available service department records confirm that from August 1950 to July 1951 the Veteran was attached to Heavy Mortar Company, 38th Infantry Regiment, 2nd Infantry Division in Korea, tending to corroborate his reported Military Occupational Specialty (MOS) and account of combat related acoustic trauma.  These factors together render the Veteran's statements competent, credible and highly probative.  

The Veteran served in combat in Korea; the duties associated with his MOS likely resulted in acoustic trauma; and his account of acoustic trauma is consistent with the circumstances, conditions and hardships of that service.  38 U.S.C.A. § 1154(b); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012); 38 C.F.R. § 3.304(d).  In-service acoustic trauma is demonstrated.  

The December 2009 VA audiological opinion fails to adequately consider or address the Veteran's competent, credible, and highly probative account of combat related acoustic trauma and recurrent hearing impairment symptomatology after separation.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  The Board finds the opinion is incomplete, inadequate, and of no probative value with respect to the claim for service connection for hearing loss.  

The competent and credible evidence indicates the Veteran has a currently bilateral hearing disability for VA purposes; that he experienced combat-related acoustic trauma in Korea; and that he has experienced hearing impairment since the time.  

Service connection for bilateral hearing loss is warranted.  

Tinnitus

Service-connection may also be established on a secondary basis for the disability if it is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  

The December 2009 VA examiner diagnosed tinnitus, opining the disability was likely a symptom of bilateral hearing loss but not likely related to in-service acoustic trauma.   

The opinion, in effect, attributes tinnitus as secondary to the now service-connected hearing loss.  Accordingly, service connection for tinnitus is warranted.  


ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  



______________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs