Citation Nr: 1602245	
Decision Date: 01/20/16    Archive Date: 01/27/16

DOCKET NO.  13-24 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1. Entitlement to service connection for a bilateral sensorineural hearing loss disability.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

K. Kardian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1967 to May 1969. 

This matter is before the Board of Veteran's Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2015. A transcript of the hearing is associated with the claims files.

The records reflect that after the Statement of the Case (SOC), the Veteran submitted additional relevant evidence to the Board. Although a Supplemental Statement of the Case (SSOC), was not issued following receipt of this evidence, given the favorable disposition of the Veteran's claims, the Board finds that the Veteran is not prejudiced by the Board reviewing the evidence in the first instance and adjudicating his claims.

The Board has reviewed the electronic records maintained in both Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1.  The competent and credible evidence of record is in equipoise as to whether the Veteran's current bilateral sensorineural hearing loss disability is causally related to his active military service.
2.  The competent and credible evidence of record is in equipoise as to whether the Veteran's tinnitus is causally related to his active military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral sensorineural hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).

2.  The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the fully favorable decision as to the issues of service connection for bilateral hearing loss and tinnitus, no further discussion of compliance with VA's duty to notify and assist is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). 

II. Service Connection

The Veteran is seeking service connection for a bilateral hearing loss disability and tinnitus. The Veteran alleges that his hearing loss and tinnitus are the result of his active military service, including in-service noise exposure. 

Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in-service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16   (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015).

Regarding claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 (2015), operates to establish when a hearing loss disability can be service connected. Id. at 159. 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, 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 (2015).

 When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

First, the Veteran has current bilateral sensorineural hearing loss. The Veteran was afforded a VA audiological examination in November 2012. On the authorized audiological evaluation in November 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
65
75
90
LEFT
15
25
60
70
85

Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 64 percent in the left ear. Hearing acuity levels in both of the Veteran's ears meet the requirements of 38 C.F.R. § 3.385 (2015), as he has auditory frequencies in each ear that are 40 decibels or higher. 

As for tinnitus, the Veteran has consistently stated that he currently has tinnitus, which he is competent to report, as tinnitus is a disability that is fully observable through the senses and requires no specialized testing to diagnose.  See Jandreau, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Thus, his lay statements satisfy the first element of service connection, a current disability. 

Second, the Veteran has reported experiencing hearing loss in service as a helicopter mechanic, and exposure to noise without the use of hearing protection. The Veteran's service treatment records include an August 1967, Report of Medical Examination, in which the examiner indicated a diagnosis of bilateral hearing loss, high frequency.  The Veteran's service personnel records confirm he had a military occupational specialty (MOS) as a helicopter repairman and aircraft mechanic. As such, the Board finds an in-service event and hazardous noise exposure. Therefore, as to bilateral hearing loss, the second element of service connection is met.

The Veteran has consistently stated that his tinnitus began in service due to noise from helicopter and aircraft engines without the use of hearing protection. The Veteran's DD 214 confirms his MOS as a helicopter repairman and aircraft mechanic. As such the Board finds his statements credible, as they are consistent with the circumstances of his service. Therefore, as to tinnitus, the second element of service connection is met.

Finally, concerning the third element of service connection, evidence of a nexus between the Veteran's currently diagnosed bilateral hearing loss and tinnitus and his service, the Board notes the evidence of record consists of credible statements from the Veteran, and conflicting competent medical opinions regarding the likely etiology of the Veteran's bilateral hearing loss and tinnitus. 

The Veteran had a VA examination in November 2012. The VA examiner opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of military service. As to hearing loss, the examiner reasoned that the Veteran's entrance and separation examinations were within normal limits with no significant auditory threshold shifts. The examiner noted the Veteran's threshold shift from entrance to the August 1967 examination and attributed such as an indication of a temporary threshold shift which subsequently improved at separation. The VA examiner provided a supplemental opinion in August 2013, in which the examiner attributed the Veteran's hearing loss to the combined effects of multiple factors after military service including age, and occupational noise exposure. The examiner found the Veteran's tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss. The VA examination and opinion is based on accurate facts and a thorough review of the claims file, and therefore is entitled to probative weight.   

A private opinion and examination from February 2013 has been made part of the claims file. The examiner indicated that the Veteran's hearing loss was at least in part related to his noise exposure in service. The examiner provided a supplemental private opinion in November 2015. The examiner found that the Veteran's hearing loss and tinnitus was at least as likely as not a result of his active military service. The examiner found the Veteran's hearing loss and tinnitus was consistent with a history of loud noise exposure, which the Veteran experienced in service. The physician evaluated the Veteran and considered both his noise exposure in-service and the Veteran's lay statements. This private opinion is also based on accurate facts, a thorough review of the claims file and therefore is entitled to probative weight.

The Board finds that the competent evidence for and against service connection for hearing loss and tinnitus is in equipoise; that is the evidence demonstrating that the Veteran's hearing loss and tinnitus is related to in-service noise exposure is equally weighted against the evidence demonstrating other etiology, such as age or post-service occupations. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his bilateral hearing loss and tinnitus are related to active duty service. Thus, resolving all reasonable doubt in favor of the Veteran, service connection for a bilateral hearing loss disability and tinnitus is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.101 (2015).  

ORDER

Service connection for a bilateral sensorineural hearing loss disability is granted. 

Service connection for tinnitus is granted.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs