Citation Nr: 1436873 Decision Date: 08/18/14 Archive Date: 08/27/14 DOCKET NO. 12-27 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana 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 ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1957 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the Veteran's claims for entitlement to service connection for hearing loss and tinnitus. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's hearing loss, considered disabling under VA standards, is at least as likely the result of noise exposure in service as it is the result of any other cause or factor. 2. Tinnitus is likely the result of the Veteran's bilateral sensorineural hearing loss. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Without deciding whether the notice and development required has been satisfied with respect to the issues on appeal, the Board concludes that this duty does not preclude the Board from adjudicating these claims, because the Board is granting in full the benefits sought on appeal. If any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. 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). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is included among those chronic diseases. 38 C.F.R. § 3.309(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. III. Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be construed to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or, when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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 (2014). The requirements of section 3.385 need only be met for the purposes of showing a current "disability" for service connection purposes. The purpose of section 3.385 is to establish guidelines for determining when a hearing "disability" is present so that service connection may be granted. It does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service or where hearing loss was shown in service but not to the disabling degree depicted in section 3.385. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was afforded a VA audiological examination in June 2011. The audiometric results documented in the examination report show that the Veteran has a degree of hearing loss which meets the requirements of a current "disability" for the purposes of service connection. 38 C.F.R. § 3.385. Thus, a current bilateral hearing loss disability has been shown, and the remaining question is whether the hearing loss had its onset in service or is otherwise the result of a disease or injury incurred service. 38 C.F.R. § 3.303. With regard to the question of the onset of hearing loss, the Board notes that the Veteran's service treatment records were requested from the National Personnel Records Center (NPRC) which responded that such records were "fire-related" (referring to a fire at the NPRC in 1973) and therefore unavailable. When a veteran's service treatment records are unavailable, VA's duty to assist and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule (see 38 U.S.C.A. §§ 71204(d)(1), 5107(b)) are heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has described military noise exposure including working as an aircraft mechanic with exposure to aircraft reciprocating and jet engines without the use of hearing protection. Because the Veteran's DD Form 214 documents a military occupational specialty of airplane mechanic, the Veteran's statement regarding military noise exposure is consistent with his duties in service. 38 U.S.C.A. § 1154(a) (providing that "where a veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of such service . . . ."). The Board concludes that in-service noise exposure is therefore conceded, and the remaining issue in the case is whether the Veteran's current hearing loss is at least as likely the result of this noise exposure as it is the result of some other cause or factor. In a November 2011 addendum to the VA examination report, the VA examiner concluded that an opinion regarding hearing loss could not be rendered without resort to mere speculation because no military or private medical records were available. Unfortunately, this statement, without further explanation, does not provide an adequate basis on which the Board may decide the claim because "before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." See Jones v. Shinseki, 23 Vet.App. 382, 390 (2009). The Board could remand the case for another opinion on the matter. However, in light of the Veteran's advanced age, the Board has determined that a VA Training Letter on Hearing Loss provides enough information about the likely causes of sensorineural hearing loss, the type that this Veteran has, to resolve the benefit of the doubt on the remaining issue of the likelihood of a connection between the Veteran's current hearing loss and noise exposure in service. See Training Letter 10-02 (March 18, 2010). In this regard, the Training Letter notes that "[t]he two most common causes of [sensorineural hearing loss] are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise)." Training Letter at 3. Because the VA examiner did not address this question and because the Veteran had noise exposure in service, the Board will resolve the benefit of the doubt in favor of the Veteran in finding that it is at least as likely that the Veteran's hearing loss in this case is the result of noise exposure in service as it is the result of any other cause or factor including presbycusis. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. In sum, the evidence demonstrates that the Veteran has current bilateral sensorineural hearing loss which meets the level of severity under VA regulations to constitute a hearing loss disability; the Veteran experienced excessive noise exposure during active duty; and, resolving reasonable doubt in favor of the Veteran, his current hearing loss is as likely the result of noise exposure as it is the result of any other known or common cause of sensorineural hearing loss. Thus, the Board concludes that service connection for bilateral hearing loss is warranted on a direct basis. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Having so concluded, the Board need not decide whether hearing loss is warranted on a presumptive basis under 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). IV. Tinnitus The Veteran contends that he has tinnitus that began during, and is related to, his active service. As noted above, the Veteran's in-service excessive noise exposure is conceded. At the June 2011 VA examination, the Veteran reported an onset of tinnitus in service. He stated that when he inquired about it in 1961, he was told there was nothing to be done about the ringing in his ears. The VA examiner provided an addendum in November 2011, stating that because of a lack of medical records, an opinion regarding tinnitus could not be rendered without resort to mere speculation. VA Training Letter 10-02 notes that subjective tinnitus "is a phantom auditory sensation that is perceived as a sound when there is no outside source of the sound. It is a symptom rather than an illness or disease." Training Letter at 4. The Veteran is competent to report such symptoms as ringing in his ears because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Because of the subjective nature of tinnitus, it is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Now that the Board has granted service connection sensorineural hearing loss in this decision, service connection for tinnitus may be granted on a secondary basis as a disability proximately due to or resulting from the service-connected hearing loss. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310. In this regard, the Board notes that "an associated hearing loss is usually present" with tinnitus. THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. "High frequency tinnitus usually accompanies [noise-induced] hearing loss." THE MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear. The VA Training Letter also notes that "[s]ensorineural hearing loss . . . is the most common cause of tinnitus." Training Letter at 5. Accordingly, based on the foregoing information and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for for tinnitus is warranted. 38 U.S.C.A. §§ 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.310; Gilbert, 1 Vet. App. at 54. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs