Citation Nr: 1630607 Decision Date: 08/02/16 Archive Date: 08/11/16 DOCKET NO. 11-26 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1965. This mater comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss disability had onset during active service. 2. The Veteran's current tinnitus had onset during active service or is otherwise etiologically related to his hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1132, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1132, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). As the Veteran's claims of entitlement to bilateral hearing loss and tinnitus are being granted herein, any error related to the VCAA regarding this issue is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Merits The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus on the basis that noise exposure during service caused his present hearing loss and constant ringing in his ears. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In Fountain v. McDonald, 27 Vet. App. 258 (2015) the United States Court of Appeals for Veterans Claims (Court) held that tinnitus, "at a minimum where there is evidence of acoustic trauma," is also a chronic disease under 38 C.F.R. § 3.309(a), "as an 'organic disease[] of the nervous system.'" Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For presumptive chronic diseases, to include sensorineural hearing loss and, now, tinnitus, an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (for tinnitus, a Veteran is competent to present evidence of continuity of symptomatology). Concerning the first element, impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 . A VA audiometric examination in January 2010 revealed pure tone auditory thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz to be 50, 55, 65, 65 and 75 dB, respectively, in the left ear and 35, 40, 55, 65 and 70 dB, respectively, in the right ear. These findings show that the Veteran meets the criteria for a current hearing loss disability under 38 C.F.R. § 3.385 , which the examiner diagnosed as sensorineural hearing loss. In addition, the VA examination noted that tinnitus is currently present. The first element, existence of present disability, is satisfied. As to the second element, the June 1965 Report of Medical Examination for purposes of separation documented the Veteran's auditory thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz to be 10, 15, 5, 5, and 5 dB, respectively, in the right ear and 5, 5, 5, 5, 10 dB, respectively, in the left ear. However, the June 1965 separation examination reflects that the audiometric findings were recorded in accordance with standards set for by the American Standards Association (ASA) although, since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, when converted to ANSI/ISO standards, the Veteran's June 1965 examination findings at auditory thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 25, 25, 15, 15, and 10 dB, respectively, in the right ear and 20, 15, 15, 15, and 15 dB, respectively, in the left ear. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, when converted, it becomes clear that the findings recorded at discharge document some degree of hearing loss. In addition, the Veteran's service treatment records include a November 1964 notation that the Veteran was seen for a "roaring" in the Veteran's left ear. Notwithstanding the conceded in-service acoustic trauma (the Veteran served as a armor crewman), a causal connection between the military noise exposure and the Veteran's present hearing loss and tinnitus must be established. The January 2010 VA examiner opined the Veteran's sensorineural hearing loss and tinnitus was not caused by or the result of military acoustic trauma. The examiner indicated the Veteran's hearing remained normal and unchanged during active duty period. The opinion is inherently flawed. First, the examiner does not appear to have converted the ASA to ANSI/ISO. Such is problematic because some level of hearing loss was documented at discharge. Second, there is no basis to the finding that the Veteran's hearing went unchanged during service. His entrance examination only included a whispered voice test. That test provides no useable data to determine whether a change in the Veteran's hearing occurred during service. Finding that the June 2010 VA examination is essentially inadequate, the Board is left with the consisting of the Veteran's June 2009 statement regarding his hearing loss and tinnitus that has been present since service, his competent and credible history of inservice noise exposure, the November 1964 service treatment notation for "roaring" in the ears, and the June 1965 Report of Medical Examination for purposes of separation which documents the existence of some level of hearing loss at the time of his discharge from service. The evidence is in favor of a finding that the Veteran's bilateral hearing loss is related to his service. Consequently, the Board also finds the Veteran's tinnitus, as the January 2010 examiner found it was likely related to the hearing loss, is also related to his service. See 38 C.F.R. § 3.310. Accordingly, the Board finds that the evidence supports the Veteran's claim for service connection for bilateral hearing loss and tinnitus. These claims are granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs