Citation Nr: 1804581 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 16-25 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from March 1959 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Portland, Oregon, that denied service connection for bilateral hearing loss and tinnitus. In December 2017, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss is related to in-service acoustic trauma. 2. Resolving all reasonable doubt in the Veteran's favor, tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claims of service connection for bilateral hearing loss and tinnitus. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold 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 (2017). Even though disabling hearing loss may not be demonstrated at separation, a service member may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. The Veteran asserts that he has bilateral hearing loss and tinnitus that are manifested as a result of his period of active service. During the December 2017 Board hearing, he described that his symptoms began in service as a result of his duties with an artillery unit. He added that he experienced tinnitus beginning in service and that he first noticed consistent hearing loss soon after separation from service, both of which had increasingly continued ever since. He also noted that a VA examination report dated in December 2014 had incorrectly indicated that he had asserted his hearing loss began 10 years earlier. A review of the medical evidence of record demonstrates that the December 2014 VA examination report confirmed a current hearing loss disability, with pure tone thresholds above 40 decibels in multiple levels. See 38 C.F.R. § 3.385. Further, the evidence establishes in-service injury via hazardous noise exposure as indicated by the Veteran's military occupational specialty in a field artillery unit as noise exposure would be consistent with the circumstances of such service. The Veteran's March 1959 enlistment report of medical examination shows that clinical evaluation of the ears and drums was within normal limits. Pure tone threshold testing was not conducted, but whispered voice testing revealed hearing of 20/20 in each ear. The Veteran's service separation report of medical examination dated in October 1962 shows clinical evaluation of the ears was within normal limits. Both whispered voice testing and pure tone threshold testing were conducted. Whispered voice testing revealed hearing of 15/15 in each ear. Audiological evaluation measuring pure tone thresholds, in decibels, was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 - - LEFT 25 15 15 - - This examination had used American Standards Association (ASA) units, which was the standard of measurements of pure tone thresholds by the service department audiological examiners prior to October 31, 1967. Subsequent to October 31, 1967, the service department measured pure tone thresholds using International Standard Organization (ISO) units. The pure tone thresholds set forth above have been converted to ISO units. The remaining element for service connection is a link or nexus between the current disability and active service, to include based on continuity of symptomatology. The Veteran has consistently asserted that he has experienced bilateral hearing loss and tinnitus ever since his separation from service. During the December 2017 Board hearing, he indicated that his post-service occupational noise exposure was low. The Veteran is competent to report factually observable occurrences in service, the timing of the observable symptoms of his disabilities, and to receipt of medical treatment and what his providers told him about his conditions. See Jandreau, 492 F.3d at 1376-77. In light of the Veteran's reports of continuous hearing loss and tinnitus symptoms that he first noticed during service; the conceded noise exposure in service; evidence of current bilateral hearing loss and tinnitus disabilities; and the low probative value of the VA examination report that was based on an inaccurate assumption that the Veteran's symptoms had begun only 10 years earlier, the Board finds that the evidence is at the very least evenly balanced as to whether the current bilateral hearing loss disability and tinnitus are related to in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs