Guest allanopie Posted June 14, 2006 Share Posted June 14, 2006 BVA9404880 DOCKET NO. 93-01 204 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a chronic bilateral sensorineural hearing loss disability. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Sternad, Associate Counsel INTRODUCTION The appellant served on active duty from February 1957 to May 1966, and from September 1990 to December 1990. This matter arises from a rating decision of June 1992 from the St. Petersburg, Florida Regional Office (RO) in which service connection for a hearing loss disability and tinnitus were denied. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his current hearing impairment is due to exposure to loud noise during his first period of service in which hearing protection was not provided. In addition, he contends that he has a constant high-pitched siren sound in his left ear and intermittent ringing in his right ear which are the result of acoustic trauma in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a grant of service connection for a bilateral sensorineural hearing loss disability and supports a grant of service connection for bilateral tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran currently does not have a bilateral sensorineural hearing loss disability for VA rating purposes. 3. The veteran has bilateral tinnitus which is related to his active service. CONCLUSIONS OF LAW 1. A chronic bilateral hearing loss disability was not incurred in or aggravated by service, nor was a sensorineural hearing loss disability shown to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We find that the veteran has presented evidence of "well-grounded" claims within the meaning of 38 U.S.C.A. § 5107. That is, the claims are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). We further find that the VA has properly assisted the veteran in developing the facts pertinent to his claims. 38 U.S.C.A. § 5107. When all the evidence is assembled, the determination is made whether the evidence is in relative equipoise, or whether a preponderance of the evidence is for or against the claim. 38 U.S.C.A. § 5107. The appellant will prevail in either of the first two events and the claim will be denied if the third event occurs. I. Service Connection for Chronic Bilateral Sensorineural Hearing Loss Disability We find that service connection for a chronic bilateral sensorineural hearing loss disability is not warranted by the evidence of record, inasmuch as a current hearing loss disability is not demonstrated for VA rating purposes. Service connection for a chronic hearing loss disability may be granted if the disability results from disease or injury incurred in service, or if a sensorineural-type hearing loss disability was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). The veteran must have a current disability due to service in order for service connection to be granted. 38 C.F.R. § 3.303. Service connection for impaired hearing will not be established when the thresholds for the frequencies at 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. The most current medical evidence of record, a VA audiogram in October 1991, demonstrates that the veteran's hearing is within normal limits for VA rating purposes. The pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 10 10 20 LEFT 20 20 10 15 35 Speech audiometry shows speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. We note that audiograms in August 1989 and February 1991 demonstrated a temporary hearing loss disability in the left ear. On the audiological evaluation in August 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 5 10 15 LEFT 30 20 5 40 40 Speech recognition ability was not recorded. On the audiological evaluation in February 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 5 5 10 LEFT 20 20 10 15 40 Speech recognition ability was not recorded. It appears that the hearing loss disability demonstrated in the August 1989 and February 1991 audiograms was not a chronic disorder. The hearing impairment noted in the August 1989 audiogram at 3,000 hertz in the left ear subsequently improved as demonstrated by the results of the audiograms in February and October 1991. In addition, the auditory acuity demonstrated in the August 1989 and February 1991 audiograms at 4,000 hertz in the left ear had improved at the time of the October 1991 audiogram. The evidence of record demonstrates that the veteran has a hearing impairment but it does not demonstrate a chronic hearing loss disability for VA rating purposes. Therefore, service connection for a bilateral sensorineural hearing loss disability is not warranted. II. Service Connection for Tinnitus Service connection for tinnitus may be granted if it was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107; 38 C.F.R. § 3.303. Each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types and circumstances of his service. 38 C.F.R. § 3.303. Although the service medical records are negative for complaints of ringing in the ears or a diagnosis of tinnitus, the Board finds that the current tinnitus is probably related to the veteran's exposure to acoustic trauma in service. The service records demonstrate that the veteran served in combat in Vietnam and his military occupational specialty was light weapons infantryman. The veteran noted that during the 9 years of his first period of service he was exposed to light and heavy weapons firing for long periods of time without ear protection. The evidence of record demonstrates that the veteran was exposed to acoustic trauma during service. In addition, the examiner at the VA examination in October 1991 noted that the veteran reported bilateral tinnitus, which was periodic in the right ear and constant in the left ear. The examiner noted that the probable cause of the veteran's tinnitus was exposure to gunfire in the infantry. The evidence shows that the veteran currently has tinnitus in both ears and, although it was not demonstrated in service, it has been related to an injury (acoustic trauma) incurred in service. Therefore, service connection for tinnitus is warranted. ORDER Service connection for a chronic bilateral sensorineural hearing loss disability is denied. Service connection for bilateral tinnitus is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * U. R. POWELL (MEMBER TEMPORARILY ABSENT) LAWRENCE M. SULLIVAN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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/files1/9404880.txt Link to comment Share on other sites More sharing options...
Moe Posted June 14, 2006 Share Posted June 14, 2006 The VA has appealed this decision to the federal circuit. Link to comment Share on other sites More sharing options...
Guest allanopie Posted June 14, 2006 Share Posted June 14, 2006 The VA has appealed this decision to the federal circuit. Hello Moe, Im not sure what you meant. This case before the BVA was granted. Did the BVA withdraw the award later? ########### >Service connection for bilateral tinnitus is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 Link to comment Share on other sites More sharing options...
Moe Posted June 15, 2006 Share Posted June 15, 2006 (edited) Don't know about this individual, only the issue of granting 10% for each ear. The VA is appealing the BVA decision. I don't think the federal Circuit will over turn the BVA decision. Probably just a stall tactic by the VA. This will only affect those rated with bilateral tinnitus prior to june 03. Edited June 15, 2006 by Moe Link to comment Share on other sites More sharing options...
Guest allanopie Posted June 16, 2006 Share Posted June 16, 2006 >This will only affect those rated with bilateral tinnitus prior to june 03. Hello Moe, I think you meant, it will affect those who filed for bilateral tinnitus prior to 2003, but were awarded 10% for a single rating of Tinnitus instead. I filed back in the early 90's. I wonder if the BVA has jurisdiction over the VARO's, can we use these BVA cases as precedent cases to send in on our claims? I 've been hearing from my SO for over a yr, that my bilat tinnitus claim before the RO, has to wait until the BVA is finished with my appeal claim, returns the folder & a precedent case is decided on bilateral tinnitus in the courts & passed down. Lacking this precedent case, doesn't the BVA decisions become the precedent for the RO's? Also, IF the RO's grant eligible claims before them regarding "bilateral tinnitus", based on the BVA's reasoning for granting 10% tinnitus in each ear, will they be punished for speeding up the claims process without the use of fraud or simply waiting for Vets to die? Would this put the VA way over it's 4% cap set on awarded claims? ############################################################# Don't know about this individual, only the issue of granting 10% for each ear. The VA is appealing the BVA decision. I don't think the federal Circuit will over turn the BVA decision. Probably just a stall tactic by the VA. This will only affect those rated with bilateral tinnitus prior to june 03. Link to comment Share on other sites More sharing options...
Moe Posted June 16, 2006 Share Posted June 16, 2006 Yes that is what I said, briefly. Those, like me, rated for bilateral tinnitus before june 03 were only given 10% because the VA was misinterpreting the law. The BVA ruled that we should get 10% for each ear and the VA has appealed that decision to the Federal circuit. My latest info says that we should hear something before the 4th on that appeal. What I have said is very abbreviated as it would take pages to detail all the events. I personally don't read page long posts so I tend to make mine as short as possible. Link to comment Share on other sites More sharing options...
Guest allanopie Posted June 16, 2006 Share Posted June 16, 2006 >My latest info says that we should hear something before the 4th on that appeal. Thanks Moe! I'll look for it next month. ############################################################ Yes that is what I said, briefly. Those, like me, rated for bilateral tinnitus before june 03 were only given 10% because the VA was misinterpreting the law. The BVA ruled that we should get 10% for each ear and the VA has appealed that decision to the Federal circuit. My latest info says that we should hear something before the 4th on that appeal. What I have said is very abbreviated as it would take pages to detail all the events. I personally don't read page long posts so I tend to make mine as short as possible. Link to comment Share on other sites More sharing options...
Question
Guest allanopie
BVA9404880
DOCKET NO. 93-01 204 ) DATE
)
)
)
THE ISSUES
1. Entitlement to service connection for a chronic bilateral
sensorineural hearing loss disability.
2. Entitlement to service connection for bilateral tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Sternad, Associate Counsel
INTRODUCTION
The appellant served on active duty from February 1957 to May 1966,
and from September 1990 to December 1990.
This matter arises from a rating decision of June 1992 from the St.
Petersburg, Florida Regional Office (RO) in which service connection
for a hearing loss disability and tinnitus were denied.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his current hearing impairment is due to
exposure to loud noise during his first period of service in which
hearing protection was not provided. In addition, he contends that
he has a constant high-pitched siren sound in his left ear and
intermittent ringing in his right ear which are the result of
acoustic trauma in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on its review
of the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against a grant of service
connection for a bilateral sensorineural hearing loss disability and
supports a grant of service connection for bilateral tinnitus.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained by the agency of original
jurisdiction.
2. The veteran currently does not have a bilateral sensorineural
hearing loss disability for VA rating purposes.
3. The veteran has bilateral tinnitus which is related to his active
service.
CONCLUSIONS OF LAW
1. A chronic bilateral hearing loss disability was not incurred in
or aggravated by service, nor was a sensorineural hearing loss
disability shown to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1153, 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (1993).
2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131,
5107; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We find that the veteran has presented evidence of "well-grounded"
claims within the meaning of 38 U.S.C.A. § 5107. That is, the claims
are plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). We
further find that the VA has properly assisted the veteran in
developing the facts pertinent to his claims. 38 U.S.C.A. § 5107.
When all the evidence is assembled, the determination is made whether
the evidence is in relative equipoise, or whether a preponderance of
the evidence is for or against the claim. 38 U.S.C.A. § 5107. The
appellant will prevail in either of the first two events and the claim
will be denied if the third event occurs.
I. Service Connection for Chronic Bilateral
Sensorineural Hearing Loss Disability
We find that service connection for a chronic bilateral sensorineural
hearing loss disability is not warranted by the evidence of record,
inasmuch as a current hearing loss disability is not demonstrated for
VA rating purposes. Service connection for a chronic hearing loss
disability may be granted if the disability results from disease or
injury incurred in service, or if a sensorineural-type hearing loss
disability was demonstrated to a compensable degree within one year
thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991);
38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). The veteran must have a
current disability due to service in order for service connection to
be granted. 38 C.F.R. § 3.303.
Service connection for impaired hearing will not be established when
the thresholds for the frequencies at 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.
The most current medical evidence of record, a VA audiogram in
October 1991, demonstrates that the veteran's hearing is within
normal limits for VA rating purposes. The pure tone thresholds, in
decibels, are as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
20
10
10
20
LEFT
20
20
10
15
35
Speech audiometry shows speech recognition ability of 94 percent in
the right ear and 96 percent in the left ear.
We note that audiograms in August 1989 and February 1991
demonstrated a temporary hearing loss disability in the left ear.
On the audiological evaluation in August 1989, pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
20
5
10
15
LEFT
30
20
5
40
40
Speech recognition ability was not recorded. On the audiological
evaluation in February 1991, pure tone thresholds, in decibels, were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
25
5
5
10
LEFT
20
20
10
15
40
Speech recognition ability was not recorded.
It appears that the hearing loss disability demonstrated in the
August 1989 and February 1991 audiograms was not a chronic disorder.
The hearing impairment noted in the August 1989 audiogram at 3,000
hertz in the left ear subsequently improved as demonstrated by the
results of the audiograms in February and October 1991. In addition,
the auditory acuity demonstrated in the August 1989 and February 1991
audiograms at 4,000 hertz in the left ear had improved at the time of
the October 1991 audiogram.
The evidence of record demonstrates that the veteran has a hearing
impairment but it does not demonstrate a chronic hearing loss
disability for VA rating purposes. Therefore, service connection for
a bilateral sensorineural hearing loss disability is not warranted.
II. Service Connection for Tinnitus
Service connection for tinnitus may be granted if it was incurred in
or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107;
38 C.F.R. § 3.303. Each disabling condition for which a veteran
seeks service connection must be considered on the basis of the
places, types and circumstances of his service. 38 C.F.R. § 3.303.
Although the service medical records are negative for complaints of
ringing in the ears or a diagnosis of tinnitus, the Board finds that
the current tinnitus is probably related to the veteran's exposure to
acoustic trauma in service. The service records demonstrate that the
veteran served in combat in Vietnam and his military occupational
specialty was light weapons infantryman. The veteran noted that
during the 9 years of his first period of service he was exposed to
light and heavy weapons firing for long periods of time without ear
protection. The evidence of record demonstrates that the veteran was
exposed to acoustic trauma during service.
In addition, the examiner at the VA examination in October 1991 noted
that the veteran reported bilateral tinnitus, which was periodic in
the right ear and constant in the left ear. The examiner noted that
the probable cause of the veteran's tinnitus was exposure to gunfire
in the infantry.
The evidence shows that the veteran currently has tinnitus in both
ears and, although it was not demonstrated in service, it has been
related to an injury (acoustic trauma) incurred in service.
Therefore, service connection for tinnitus is warranted.
ORDER
Service connection for a chronic bilateral sensorineural hearing loss
disability is denied.
Service connection for bilateral tinnitus is granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
U. R. POWELL (MEMBER TEMPORARILY ABSENT)
LAWRENCE M. SULLIVAN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
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/files1/9404880.txt
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