Citation Nr: 0728146 Decision Date: 09/07/07 Archive Date: 09/14/07 DOCKET NO. 07-16 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran had active military service from September 1950 to September 1953. Service in Korea is indicated by the evidence of record. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the veteran requested a Travel Board hearing before a Veterans Law Judge, but subsequently withdrew his request. Accordingly, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2006). This case has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2006). FINDINGS OF FACT 1. The veteran has bilateral hearing loss that is related to his military service. 2. The veteran has tinnitus that is related to his military service. CONCLUSIONS OF LAW 1. The veteran's bilateral hearing loss is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2006). 2. The veteran's tinnitus is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(a) 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the standard for processing claims for VA benefits was changed, effective November 9, 2000, with the signing into law of the Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No. 106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). As the Board's decision constitutes a complete grant of the benefits sought on appeal, there is no further assistance or development required in this case. An April 2005 report from the National Personnel Records Center (NPRC) indicates that the veteran's service medical records (SMRs) were among those thought to have been destroyed in a 1973 fire at NPRC. When records in government custody are lost or destroyed, VA has a heightened duty to consider the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Here, the only remnant of the veteran's service medical records (SMRs) is the report of his discharge examination in September 1953, which reported a whispered and spoken voice examination that revealed hearing acuity of 15/15. The veteran contends that he has bilateral hearing loss and tinnitus that were caused by his exposure to noise in the Army. The evidence suggests that the veteran was in an artillery unit in Korea, where he worked in the unit's machine shop, and was likely exposed to noise both in the machine shop and due to proximity to the firing of field artillery pieces. There are two VA audiological examinations of record. A March 2005 audiological evaluation reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 45 70 90 LEFT 25 45 60 80 85 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 in the left ear. The veteran reported to the examiner that he had tinnitus that was not too loud, and that it was periodic. The audiologist noted that the veteran was near artillery fire and worked in a machine shop in service. He reportedly worked as a machinist for more than 40 years after service, and was also involved in skeet shooting. This examiner opined that the veteran's hearing loss more likely than not was initiated in the military, with later aggravation from both occupational and recreational sources. The veteran was afforded a second audiological evaluation in August 2005, which reported that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 45 70 90 LEFT 25 40 60 80 85 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 78 in the left ear. This examiner reported that the veteran denied having tinnitus. Regarding hearing loss, this examination report indicated that the veteran reported that he normally worked in a machine shop in service, was a machinist for 40 years after service, reported recreational noise exposure as a skeet shooter, and denied other known causes of hearing loss. Noting the veteran's significant post-military noise exposure, and that the veteran reported only one week of exposure to artillery fire during service, the examiner stated that military noise exposure was not conceded. The examiner reported that he could not be at least 50 percent certain that the veteran's hearing loss was service related. Considering the evidence, he stated, it was "not as likely as not" that hearing loss occurred during or as a result of military service. Because the veteran denied experiencing tinnitus at this examination, the examiner determined that tinnitus therefore did not exist, and therefore did not occur during or as a result of military service. In the veteran's June 2006 notice of disagreement (NOD), he stated that he did not know where the assertion that he was exposed to recreational noise through skeet shooting came from, and stated that he had never in his life shot skeet. He also reported that he had had tinnitus since his time in service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498 (1995). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. Applying the audiological findings to the preceding, the Board determines that the veteran has impaired hearing as defined by VA regulations. The veteran's discharge examination is not helpful to the veteran's claim because it recorded a "normal" whispered and spoken voice result of 15/15. While the veteran admitted to being exposed to the noise of the firing of artillery pieces for only one week, the Board finds it significant that the veteran apparently spent most of his working hours in service in a machine shop. Because the August 2005 VA examiner attributed the veteran's hearing loss to post- service noise exposure, including exposure while working as a machinist, it seems logical to the Board that it would be likely that the veteran's exposure to noise in a machine shop in service could also have precipitated the veteran's hearing loss. According the veteran the benefit of the doubt, the Board therefore concludes that the veteran was in fact exposed to acoustic trauma in service, due both to noise in the machine shop workplace, and to some limited exposure to artillery fire. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Why the August 2005 examiner indicated that noise exposure in service was not conceded is not clear, especially when the veteran was doing the same sort of work in service as he was after service. Having thus established the first two elements required for establishment of service connection for hearing loss, the Board turns to the question of medical evidence of a nexus between the current disability and the in-service noise exposure. Here, the Board is confronted with differing medical opinions. The March 2005 audiologist opined that the veteran's hearing loss was likely related to his military service. The August 2005 audiologist, on the other hand, opined that it was not. In deciding whether or not there is medical evidence of a nexus between the current hearing loss disability and the in-service noise exposure, the Board again applies the benefit-of-the-doubt doctrine in finding that the record provides at least an approximate balance of negative and positive evidence. As noted above, the August 2005 opinion is somewhat undermined by the examiner's failure to recognize that the veteran likely experienced noise exposure in service. Therefore, on the basis of the above analysis, and after consideration of all of the evidence, the Board finds it is at least as likely as not that the veteran's bilateral hearing loss began during active military service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Turning to the veteran's tinnitus claim, the Board finds that there is evidence of a current disability in the form of the veteran's subjective complaints of bilateral tinnitus. There is also evidence of acoustic trauma while serving in the field artillery and in a machine shop. The Board also finds that there is competent and sufficient lay evidence of a nexus between the veteran's current tinnitus and the in- service acoustic trauma, and will therefore grant service connection. As noted, as a general rule, service connection requires medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza, supra. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). More recently, the Federal Circuit has held that lay evidence can be competent and sufficient to establish a diagnosis when a layperson is competent to identify the medical condition. Jandreau v. Nicholson, No. 07-7029, slip op. at 7 (Fed. Cir. July 3, 2007). Since tinnitus is a medical condition that a layperson is competent to identify, the Board finds that the veteran's lay testimony is competent and sufficient to establish a diagnosis of tinnitus. The Board acknowledges that the August 2005 audiologist reported that the veteran stated that he did not have tinnitus. The Board also notes, however, that the veteran claimed service connection for tinnitus, and that he told his first examiner that he had periodic tinnitus. He also reported in 2006, after the August 2005 examination, that he had in fact had tinnitus since service. The August 2005 examiner did not account for the varying reports, but the March 2005 examiner did when he noted that the tinnitus was "periodic," which would account for the veteran saying he did not have it the day of the August 2005 examination. Thus, with evidence of a current tinnitus disability, evidence of acoustic trauma in service, and competent and sufficient lay evidence of a nexus between the two, the criteria for service connection for tinnitus are met, and service connection is granted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs