tinnitus Bva Case_bilateral Tinnitus

[Guest allanopie]

BVA9403998

DOCKET NO. 91-43 070 ) DATE

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THE ISSUES

1. Entitlement to service connection for bilateral defective

hearing.

2. Entitlement to service connection for bilateral tinnitus.

ATTORNEY FOR THE BOARD

L. Gottfried, Counsel

INTRODUCTION

The veteran served on active duty from June 1975 to June 1979.

This case came before the Board of Veterans' Appeals (hereinafter the

Board) on appeal from rating decisions from the Department of

Veterans Affairs (hereinafter VA), Salt Lake City, Utah, Regional

Office (hereinafter RO). The RO denied service connection for

hearing loss and tinnitus in September 1989. The notice of

disagreement was received in April 1990. A statement of the case was

issued in May 1990. A substantive appeal was received in June 1990.

The RO continued to deny service connection for tinnitus and hearing

loss in a rating decision of July 1991. A supplemental statement of

the case was issued in July 1991. The case was received and docketed

at the Board in September 1991.

The Board remanded the case for development in May 1992. The RO

continued to deny service connection for bilateral hearing loss and

tinnitus in a rating decision of February 1993. A supplemental

statement of the case was issued in March 1993. The case was

received and docketed at the Board in May 1993.

An additional issue of entitlement to service connection for status

post bilateral mandibular osteotomies and temporomandibular joint

dysfunction was before the Board at the time of the May 1992 remand.

The RO granted service connection in the rating decision of February

1993. The disorder is currently classified as part of the veteran's

service-connected disorder classified as ankylosing

spondylitis/rheumatoid arthritis with costochondritis, arthralgia and

discomfort involving the feet and hands, and status post bilateral

mandibular osteotomies and temporomandibular joint dysfunction. That

issue is no longer before the Board for appellate review.

In an August 1993 letter, copies of the medical literature cited in

this decision were furnished to the veteran in accordance with

Thurber v. Brown, 5 Vet.App. 119 (1993). The veteran informed the

Board in December 1993 that he had no further evidence to submit and

that he desired the Board to proceed with his appeal.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his bilateral hearing loss and tinnitus

relate to his exposure to loud noises that were present during

service when he worked in kitchens, to include kitchens near flight

lines, and to head trauma incurred during service. He has also

contended that his hearing loss and tinnitus were caused by multiple

medications used to treat his ankylosing spondylitis.

DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),

following review and consideration of all evidence and material of

record in the veteran's claims file, and for the following reasons

and bases, it is the decision of the Board that the evidence supports

the granting of service connection for bilateral defective hearing

and bilateral tinnitus.

FINDINGS OF FACT

1. The veteran's bilateral hearing loss shown at service separation

led to his current bilateral sensorineural hearing loss.

2. The veteran's bilateral tinnitus cannot reasonably be

disassociated from the pathology underlying the bilateral

sensorineural hearing loss that is shown to have had its onset during

service.

CONCLUSIONS OF LAW

1. Bilateral defective hearing was incurred during service.

38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.385 (1993).

2. Bilateral tinnitus is proximately due to and the result of

service-connected bilateral defective hearing. 38 U.S.C.A. § 5107

(West 1991); 38 C.F.R. § 3.310(a) (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The provisions of 38 U.S.C.A. § 5107(a) have been met, in that the

veteran's claims are well grounded and adequately developed.

I. Bilateral Defective Hearing

Initially, it should be noted that service connection may be granted

for a disability resulting from disease or injury incurred in or

aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991).

Where a veteran served 90 days or more during a period of war or

during peacetime service after December 31, 1946, and sensorineural

hearing loss becomes manifest to a degree of 10 percent within one

year from date of termination of such service, such disease shall be

presumed to have been incurred in service, even though there is no

evidence of the disease during the period of service. This

presumption is rebuttable by affirmative evidence to the contrary.

38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309

(1993). Service connection for impaired hearing shall not be

established when hearing status meets pure tone and speech

recognition criteria. Hearing status shall not be considered service

connected when the thresholds for the frequencies of 500, 1,000,

2,000, 3,000 and 4,000 hertz are all less than 40 decibels; the

thresholds for at least three of these frequencies are 25 decibels or

less and speech recognition scores using the Maryland CNC Test are

94 percent or better. 38 C.F.R. § 3.385 (1993).

The veteran's statements must be reviewed in relation to all of the

evidence of record, to include the service and post service medical

records. Audiometric testing on the service enlistment examination

of January 1975 did not result in any threshold levels greater than

10. The veteran was tested at the 500, 1,000, 2,000 and 4,000 hertz

levels, but not at higher hertz levels.

The service clinical records show no complaints, abnormal findings or

diagnoses referable to hearing loss. There was no mention of head

trauma. Although the veteran denied having had hearing loss on the

history report pertaining to his separation examination of February

1979, at which time the clinical examination of the ears showed no

abnormalities, audiometric testing revealed thresholds of 40 and 30

for the right and left ears, respectively, at 6,000 hertz. Bilateral

threshold levels through 4,000 hertz were all shown to be 10 or less.

Although the hearing loss shown on the separation examination did not

meet the criteria of 38 C.F.R. § 3.385, the loss must be reviewed in

relation to the post service evidence of record. This is

particularly true since mild hearing loss is indicated by a threshold

of 20-40 decibels (includes the thresholds tested at the time of the

veteran's separation examination). R. K. Jackler, M.D., and M. J.

Kaplan, M.D., Ear, Nose & Throat in Current Medical Diagnosis &

Treatment, 146-147 (S. A. Schroeder, M.D., L. M. Tierney, Jr., M.D.,

S. J. McPhee, M.D., M. A. Papadakis, M.D., and M. A. Krupp, M.D.,

eds. 1992).

The post service record shows that the veteran initially referred to

hearing loss after service in 1988 when he claimed service

connection. His records of service support his statement that he

worked in kitchens near flight lines in service where he was exposed

to high levels of noise over a prolonged period of time. There was

nothing in the record to indicate that he was exposed to significant

or prolonged high levels of noise after service. Sensorineural

hearing loss was found on a VA examination in August 1992. There are

no records of any earlier post service audiometric testing. On that

examination the veteran related his hearing difficulties to prolonged

exposure to noises from kettles and pots while working in kitchens

during service, to include work in kitchens near flight lines. The

examiner stated in August 1992 that the hearing loss was most

compatible with exposure to loud noises.

In view of the hearing loss shown at the time of the separation

examination, the lack of any indication from the record of any

prolonged or significant exposure to noises after service, the nature

of the hearing loss shown in August 1992 that the examiner felt was

compatible with exposure to loud noises, and the history supplied by

the veteran of hearing problems in service, the Board believes a

reasonable basis exists to find that the current bilateral defective

hearing began during service. Moreover, the August 1992 test results

showed that the current hearing loss meets the criteria of 38 C.F.R.

§ 3.385.

Since the Board has determined that the veteran's bilateral defective

hearing was incurred during service, the question of whether the

veteran has bilateral defective hearing that is proximately due to or

the result of service-connected disability has become moot.

II. Bilateral Tinnitus

The criteria regarding the establishment of service connection

include provisions for the granting of service connection for a

disability which is found to be proximately due to or the result of a

service-connected disease or injury. 38 C.F.R. § 3.301(a) (1993).

The record in this case shows that the veteran's sensorineural

hearing loss began during service. He was exposed to noises during

his years of service. It is known that chronic tinnitus may be

etiologically related to sensorineural hearing loss. R. Baloh, M.D.,

The Special Senses in 2 Cecil Textbook of Medicine, 2108-2109 (J. B.

Wingaarden, M.D., L. H. Smith, Jr., M.D., J. C. Bennett, M.D., eds.

19th ed. 1992). It would be reasonable in this case to find that the

pathology underlying the current tinnitus cannot be clearly

disassociated from the veteran's service-connected bilateral

sensorineural hearing loss.

Since the Board has determined that service connection should be

granted for bilateral tinnitus on the basis that the disorder was

secondary to his service-connected bilateral sensorineural hearing

loss, the question of whether tinnitus was caused by medications used

to treat a service-connected disorder has become moot.

ORDER

Service connection for bilateral defective hearing is granted.

Service connection for bilateral tinnitus is granted.

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a

decision of the Board of Veterans' Appeals granting less than the

complete benefit, or benefits, sought on appeal is appealable to the

United States Court of Veterans Appeals within 120 days from the date

of mailing of notice of the decision, provided that a Notice of

Disagreement concerning an issue which was before the Board was filed

with the agency of original jurisdiction on or after November 18,

1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402

(1988). The date which appears on the face of this decision

constitutes the date of mailing and the copy of this decision which

you have received is your notice of the action taken on your appeal

by the Board of Veterans' Appeals.

http://www.va.gov/vetapp/files1/9403998.txt

[john999]

Allan

Those pots and pans made the cook go deaf. That is a new one. If he can get SC for hearing loss I should be able to get it being 50 yards from 155 howitzers going off all night long.