Citation Nr: 1441908	
Decision Date: 09/19/14    Archive Date: 09/30/14

DOCKET NO.  11-02 756	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from February 1966 to January 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July October 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for hearing loss and tinnitus.  The Veteran appealed the denials of service connection in this decision, and the matter is now before the Board.
 
The Veteran testified before the undersigned Veterans Law Judge at a hearing held in Waco, Texas, in April 2014.  A transcript of the hearing has been associated with the claims file.

Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System.  The documents within these systems do not include any non-duplicative materials pertinent to the present appeal, other than a transcript of his hearing before the undersigned.


FINDINGS OF FACT

1.  The Veteran was exposed to loud noises during service, to include during combat.

2.  Bilateral hearing loss and tinnitus are etiologically related to in-service noise exposure.



CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 

2.  The criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection Generally

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Service connection may 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1131 (West 2002); see also Degmetich v. Brown, 104 F.3d 1328 (1997).  This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim."  McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that evidence of a recent diagnosis of a disability prior to a claim for benefits based on that disability, is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). 

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Thus, an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Service Connection for Hearing Loss and Tinnitus

The Veteran contends that in-service noise exposures to weapons fire, ordinance detonations, and armored vehicles resulted in his current bilateral hearing loss and tinnitus.  As an initial matter, service records confirm that the Veteran was a "gunner" assigned to an armored tank unit, and further confirms his awards of both the Republic of Vietnam Campaign Medal and the Vietnam Service Medal with one Bronze Star.  Based on such evidence the Board finds that the Veteran was a combat veteran for the purposes of applying 38 U.S.C.A. § 1154(b) (West 2002).  Accordingly, as the endorsed in-service noise exposure is consistent with the nature and circumstances of his service, the Board finds that the Veteran was so-exposed.  Id.

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, 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.

Service treatment records reflect no in-service complaints or treatment referable to hearing loss or tinnitus, and on separation examination in November 1967 the Veteran's hearing was essentially normal.  See Hensley v. Brown, 5 Vet. App. 155.

The Veteran has somewhat inconsistently endorsed the onsets of both hearing loss and tinnitus as having occurred either during service or several decades after separation from service.  The Veteran's spouse, however, has indicated in written statements that she witnessed evidence of reduced hearing acuity immediately following the Veteran's separation.  To the extent that symptoms of hearing loss and tinnitus are capable of lay observation, the Veteran's statements regarding their onset are competent.  Layno v. Brown, 6 Vet. App. 465 (1994).  Similarly, to the extent that the Veteran's spouse is competent to observe the Veteran's need for repetition of verbal instructions and elevated television volume, her statements is also competent.  Id.  Thus, the balance of the competent evidence of record shows that symptoms of hearing loss and tinnitus began during - or very soon after - active service.

The Board has been presented with conflicting, competent medical opinions regarding the etiology of both hearing loss and tinnitus.  Following audiological testing verifying a current hearing loss disability, a review of the claims file, and consideration of the Veteran's lay history in December 2010, a VA examiner concluded that hearing loss was not related to service because service treatment records showed "no decline in hearing between entrance and separation."  The examiner went on to opine that the "onset of the tinnitus is too far removed from the [V]eteran's time of separation from the Army to draw a causal relationship between the symptom and military experiences."

Contrary to this opinion is the April 2012 statement of a private physician who considered the Veteran's reports of in-service noise expose and 40-year history of private audiological treatment before concluding that "his hearing loss and tinnitus [are] related to loud noise exposure earlier in life and that [they are] directly attributable to his position in the [A]rmy as a gunner and his exposure to . . . extremely loud noises."

The Board has considered the foregoing competent opinions of medical professionals and finds them to be in equipoise as to the question of etiology of the claimed disorders.  Accordingly, resolving doubt in the Veteran's favor service connection is established for both bilateral hearing loss and tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


Duties to Notify and Assist

VA has duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  The Board is granting, in full, the benefits sought on appeal and thus VA has no further duty to notify or assist.


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs