Citation Nr: 1629319 Decision Date: 07/22/16 Archive Date: 08/01/16 DOCKET NO. 15-28 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1955. This appeal is before the Board of Veterans' Appeals (Board) from a December 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In his original August 2015 substantive appeal, the Veteran requested a hearing before the Board via videoconference. Several weeks later, however, the Veteran submitted a second substantive appeal in which he indicated that he did not want a hearing before the Board. The Board construes this statement as a withdrawal of his prior hearing request. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Bilateral hearing loss is related to service. 2. Tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims service connection for bilateral hearing loss and tinnitus. 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: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. 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 claimant 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. The service treatment records in the Veteran's file do not reflect any symptoms of or treatment for hearing loss. While no hearing loss was noted at his June 1955 separation examination, there was no audiometric testing, but instead his hearing was tested via spoken and whispered voice, which VA does not consider to be a valid measure. The Veteran's Department of Defense Form 214 indicates that his military specialty in service was code 1821, which during his period of service indicated that he was a battalion supply sergeant. Private treatment records indicate that in December 2011 the Veteran reported tinnitus and hearing loss causing communication frustration. He reported onset during basic training. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 55 65 LEFT 35 35 35 65 70 Speech recognition testing was not performed using the Maryland CNC Test. The audiologist diagnosed bilateral sensorineural hearing loss and central tinnitus. The Veteran underwent a VA examination in November 2012. He reported difficulty communicating due to hearing loss and tinnitus which affected studying, relaxing, sleeping, and business. He reported experiencing combat in Korea. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 70 80 85 LEFT 50 50 65 80 95 Speech recognition scores were 80 percent in the right ear and 76 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and tinnitus. As to hearing loss, the examiner opined that it was less likely than not that it was related to service. This opinion was based on the rationale that because the Veteran's military specialty indicated low exposure to noise, it would be resorting to mere speculation to determine an etiology. As to tinnitus, the examiner opined both that it was more likely than not related to hearing loss and that it more likely than not is related to service because the Veteran reported that it had an in-service onset. In his January 2013 notice of disagreement, the Veteran reported that he was not provided with hearing protection when exposed to the constant firing of guns while in service. In other January 2013 statements, he reported that no one in his family has hearing problems, and that he believed his hearing loss was caused by exposure to gunfire without protection in military training. He denied being a hunter or otherwise being exposed to significant noise outside of service. He reported that ringing in his ears began in service. Also in January 2013, the Veteran submitted statements from his wife, his son, and his granddaughter. These statements describe the severity of the Veteran's hearing loss but do not address its etiology. In a statement received in December 2014, the Veteran reported that his post-service employment consisted of running a general store, which did not involve exposure to noise. He additionally reported that while in service, he did not report his hearing issues because he learned that in service one does no complain or go on sick call unless it is an emergency. Private treatment records reflect that in January 2015 the Veteran reported progressive hearing loss and tinnitus. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 65 70 75 LEFT 50 45 50 65 75 Speech recognition testing was not performed using the Maryland CNC Test. The audiologist diagnosed sensorineural hearing loss, moderately severe to profound in the right ear and moderate to profound in the left ear. The examiner stated that the Veteran's reported military noise exposure should be considered. The Board finds that the evidence is at least in equipoise as to whether hearing loss and tinnitus are related to service. Specifically, the Board affords the benefit of the doubt to the Veteran in light of his credible accounts of noise exposure, his reports of no post-service noise exposure, and the lack of valid testing in his service records. In addition, it is unclear why the VA examiner can opine that tinnitus arose in service but cannot offer an opinion for hearing loss without resorting to speculation. For these reasons, the Board finds that the evidence is at least in equipoise as to whether hearing loss and tinnitus are related to service, and service connection is therefore granted. Because the Veteran's claims are being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issues on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs