Citation Nr: 1815474	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  13-23 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel





INTRODUCTION

The Veteran served on active duty from June 2003 to June 2007.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO) in Boston, Massachusetts. 


FINDINGS OF FACT

1.  The Veteran's tinnitus is etiologically related to his active service.

2.  A bilateral hearing loss disability has not been present at any time during the pendency of this claim.


CONCLUSIONS OF LAW

1.  The criteria for service connection for tinnitus have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2.  A bilateral hearing loss disability was not incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained.  The Veteran was afforded an appropriate VA examination to address his claimed bilateral hearing loss and tinnitus in May 2011.  He has not asserted, and the evidence does not show his disabilities have increased in severity since then.  The Veteran was also afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but failed to report.  

Neither the Veteran nor his representative have identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence.  

Accordingly, the Board will address the merits of the Veteran's claims. 

Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

Tinnitus Claim

The Veteran seeks service connection for tinnitus, which he contends originated in service.  

The medical evidence confirms the Veteran currently has tinnitus.  The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service.  

Initially, the Board notes that the Veteran's service treatment records (STRs) show his hearing was within normal limits on entrance into active duty.  His STRs show a puretone threshold shift at separation, which is evidence of his exposure to acoustic trauma in service.  In addition, his DD-214 shows he was a Master at Arms in the United States Navy.  The Navy has acknowledged such occupation carries a moderate probability for exposure to acoustic trauma.  As such, the Veteran's exposure to excessive noise in service has been sufficiently corroborated.  In addition, the Veteran has alleged that he initially experienced tinnitus after being hit in the head playing basketball in service.  

Next, the Board observes that the Veteran underwent a VA examination to assess his claimed tinnitus in May 2011.  On VA examination the Veteran was diagnosed with tinnitus.  However, the examiner concluded the Veteran's current tinnitus was less likely as not caused by or the result of his military service.  In support of this conclusion, the examiner indicated the Veteran's STRs failed to show treatment for or a diagnosis of tinnitus.  However, an absence of contemporaneous service treatment records does not preclude granting service connection for a claimed disability.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  

Notwithstanding the medical opinion provided by the May 2011 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty, which is consistent with his military occupation.  Additionally, in February 2018 the Board obtained a comprehensive medical opinion from an Otolaryngologist at the Puget Sound VAMC.  Following a complete review of the Veteran's claim file, the physician determined there is a more probable than not basis that a contribution of the Veteran's tinnitus is due to his military noise exposure.  In support of his conclusion, the Otolaryngologist indicated that until recently hair cells were felt to be the primary target of noise injury; however, recent studies have shown that hair cell-auditory synapses is also a critical target.  The physician further explained that large numbers of these synapses and their neurons can be lost after noise exposure, even though auditory thresholds may return to normal.   

As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his exposure to acoustic trauma in service.  A qualified Otolaryngologist has determined the Veteran's current tinnitus has a greater than 50 percent probability of being caused by his military noise exposure.  He provided a competent rationale to support his conclusion.  Accordingly, a nexus to service is established.  To the extent the May 2011 VA examiner opined that it was less likely as not that the Veteran's tinnitus was related to his military service, the Board finds this opinion to be of less probative value as the opinion principally relied on a lack of formal diagnosis or treatment in service.

In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed tinnitus and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus.  Therefore, the Veteran is entitled to service connection for his tinnitus.

Bilateral Hearing Loss Claim

The Veteran also seeks service connection for bilateral hearing loss, which he contends was a consequence of his military service.  As acknowledged above, exposure to acoustic trauma in service is shown.    

The central issue in this case is whether the Veteran has a current bilateral hearing loss disability that is related to his military noise exposure.

The Veteran has not submitted any private treatment records, and his outpatient treatment records from the Brockton and Boston VAMC do not indicate he has undergone any audiological assessments in accordance with 38 C.F.R. § 3.385 noted above.  

During his above-noted May 2011 VA examination, the pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
0
5
LEFT
10
10
5
5
5

Speech audiometry revealed speech recognition ability of 100 percent in each ear.  This examination report fails to show sufficient hearing impairment to qualify as a disability for VA purposes.

There is no other evidence showing the presence of sufficient hearing impairment in either ear to qualify as a disability for VA purposes.

Accordingly, the Board must conclude that service connection is not warranted for a bilateral hearing loss disability.  In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.


ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for a bilateral hearing loss disability is denied.




____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs