Citation Nr: 1803047 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-17 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a bilateral hearing loss disability that is related to acoustic trauma in service. 2. The Veteran has tinnitus that is related to acoustic trauma in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). 2. Tinnitus was incurred in wartime service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from July 7, 1987, to May 10, 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the RO in Nashville, Tennessee. In June 2017, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. The Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. He was accorded an additional 60 days following the hearing to submit additional evidence. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2017). VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, supra. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Service treatment records reveal that, when examined for service entry in July 1986, the Veteran's ears and hearing were determined to be normal. The following pure tone thresholds were recorded: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 10 LEFT 20 10 10 10 20 The Veteran declined to be examined at service separation and no audiology testing was conducted. A May 3, 2011, VA audiology consult reveals the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 20 40 LEFT 15 15 15 25 55 The VA examiner opined that the Veteran's hearing loss has many of the classic characteristics of a noise-induced hearing loss. She opined that it is plausible that the hearing loss was at least in part caused by the noise exposure he experienced while on active duty. The report of a September 2011 VA examination includes the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 30 55 LEFT 15 15 15 25 45 Speech discrimination scores were 96 percent in the right ear and 92 percent in the left ear. The examiner could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The rationale was that there was no record of the Veteran's hearing at the time of separation. The Veteran reported post-service occupational (truck driver) and recreational (lawn mower/weed eater) noise exposures. It is thought likely/possible that aging, occupational, and recreational, noise exposure, and general health, had contributed to his hearing loss and/or tinnitus. The examiner thought it would be speculative to allocate a degree of his tinnitus to any or each of these etiologies or his current hearing loss to each of these military versus non-military etiologies. At the Board hearing, the Veteran testified that he served as an artilleryman and was around artillery, small arms fire while in service. He also went through air assault school and was around helicopters. When stationed in Germany, he served on a firing range. Part of his duty was to start a generator to keep the radios running. On one occasion, while starting the generator, a gun unexpectedly fired and caused him to lose his balance. His hearing "went out for a few minutes." It slowly came back. The Veteran submitted a private medical opinion in July 2017, subsequent to the Board hearing. Clinical audiologist K. Varney recorded the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 30 45 60 LEFT 30 30 25 45 55 Dr. Varney diagnosed bilateral sensorineural hearing loss and tinnitus. He opined that the Veteran's sensorineural hearing loss and tinnitus are more likely than not a result of acoustic trauma suffered when exposed to intense noise levels while in the US Army. He reasoned that the degree and pattern of the hearing loss and tinnitus are consistent with noise exposure as described above. After a review of all of the evidence, the Board finds that the evidence in favor of a nexus between noise exposure in service and current hearing loss and tinnitus has attained relative equipoise with the evidence against such nexus. The opinion of Dr. Varney is consistent with the observation of the May 2011 VA examiner that the Veteran's hearing loss has many of the classic characteristics of a noise-induced hearing loss. The evidence against the claim is essentially the finding of the September 2011 examiner that the evidence does not support attribution of hearing loss and tinnitus to any specific source. While it is likely impossible to determine which among the many sources of noise exposure actually caused the hearing loss and tinnitus, such a determination is not necessary in order to grant the claims. The Board acknowledges that the Veteran experienced acoustic trauma in service. Moreover, the first post-service audiometric findings showed hearing loss disabilities in both ears. Accordingly, with resolution of all reasonable doubt in favor of the claims, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. As the Board has granted the full benefit sought on appeal, there are no further duties to notify or assist. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: The American Legion Department of Veterans Affairs