BVA9504030 DOCKET NO. 93-10 574 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral, high frequency, sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from July 1960 to June 1975 and from May 1988 to November 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a September 1992 rating decision by the Department of Veterans Affairs (VA) Milwaukee, Wisconsin, Regional Office (RO), which denied entitlement to bilateral, high frequency, sensorineural hearing loss and for tinnitus. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that although his bilateral, high frequency, sensorineural hearing loss may have been initially manifested between his two periods of active military service, it underwent an increase in severity during his second period of service, thereby warranting an award of service connection on the basis of aggravation. He also attributes the development of tinnitus to the increase in his bilateral, high frequency, sensorineural hearing loss during the second period of active duty. 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 appellant'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 there is an approximate balance of the positive and negative evidence as to whether the appellant's bilateral, high frequency, sensorineural hearing loss, which was first shown in 1982, was aggravated by the second period of service. Because the VA is required by statute to extend the benefit of the doubt to a veteran when the evidence is in equipoise, we find that service connection is warranted for bilateral, high frequency, sensorineural hearing loss. It is also the decision of the Board that there is an approximate balance between the positive and negative evidence presented as to the appellant's claim of entitlement to service connection for tinnitus. Because the VA is required by statute to extend the benefit of the doubt to a veteran when the evidence as to a particular claim is in equipoise, we find that service connection is warranted for tinnitus. FINDINGS OF FACT 1. Bilateral, high frequency, sensorineural hearing loss that preexisted the appellant's second period of service is shown to have undergone an increase in severity of the underlying pathology during service. 2. Tinnitus cannot be disassociated from the appellant's service-connected bilateral, high frequency, sensorineural hearing loss. CONCLUSIONS OF LAW 1. Preexisting bilateral, high frequency, sensorineural hearing loss was aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1994). Tinnitus is proximately due to or the result of service-connected bilateral, high frequency, sensorineural hearing loss. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. I. Bilateral, High Frequency, Sensorineural Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). 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, 1000, 2000, 3000 and 4000 cycles per second (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 (1994). Review of the appellant's service medical records shows that there was no complaint or finding of any hearing loss during the appellant's first period of military service from July 1960 to June 1975. A 'Quad" medical examination conducted in April 1982 while the appellant was in the Reserves revealed audiometric findings that indicated bilateral defective hearing. Decibel losses outside the normal range were noted at 3000, 4000, and 6000 hertz in both ears, with the right ear showing losses of 40, 45, and 50 decibels, respectively, and the left ear showing losses of 45, 50, and 65 decibels, respectively. Audiometric testing conducted at the appellant's service entrance medical examination in May 1988 (for his second period of military service) revealed decibel losses of 5, 35, 45, and 50 in the right ear, at the frequencies of 2000, 3000, 4000, and 6000 hertz, respectively, and decibel losses of 5, 40, 50, and 55 in the left ear, at the frequencies of 2000, 3000, 4000, and 6000 hertz, respectively. The appellant was given a hearing profile of H2. Audiometric testing performed at the appellant's November 1991 service retirement medical examination showed decibel losses 30, 65, 70, and 70 in the right ear, at the frequencies of 2000, 3000, 4000, and 6000 hertz, respectively, and decibel losses of 25, 55, 55, and 70 in the left ear, at the frequencies of 2000, 3000, 4000, and 6000 hertz, respectively. The examination report indicated that the appellant had bilateral, mid and high frequency hearing loss, and it was noted that he had significant changes in the higher frequencies. The appellant was given a hearing profile of H3. At an April 1992 VA medical examination, the appellant stated that he had initially been diagnosed with hearing loss in 1982. He indicated that background noise made it difficult to hear and that he experienced tinnitus about 90 percent of the time. He was referred to a VA audiology clinic where he reported exposure to acoustic trauma from the firing of guns near his first aid station (he was a hospital corpsman from 1960 to 1975) and from the ships' engine noise) and was later exposed to truck and generator noise while serving as a Reservist for 16 years between 1976 and 1991. On audiological evaluation, conducted by the VA in April 1992, decibel losses recorded for the frequencies at 500, 1000, 2000, 3000, and 4000 hertz were 5, 5, 35, 65, and 65, respectively, in the right ear, and were 10, 10, 40, 60, and 65, respectively, in the left ear. Speech discrimination ability was 100 percent correct in both ears. Tinnitus was reported in both ears. Inasmuch as the appellant currently has defective hearing in both ears under the provisions of 38 C.F.R. § 3.385 (1994), the Board must look to see if the bilateral hearing loss noted at his second entrance into the military underwent an increase in severity as a result of service. A comparison of the audiological findings at the November 1991 retirement medical examination with those at the second entrance medical examination show a significant increase in the decibel losses at the frequencies at 2000, 3000, 4000, and 6000 hertz in each ear. It is also noted that the appellant's hearing profile went from an H2 at the entrance examination to an H3 at the retirement examination. After reviewing the claims file, the Board finds that there is an approximate balance of the positive and negative evidence as to whether the appellant's hearing loss shown at his second entry on to active duty increased in severity during the second period of service. Extending the benefit of the doubt to the appellant, as required by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) when the evidence is in equipoise, the Board has determined that the record shows the appellant's preexisting bilateral hearing loss underwent an increase in severity of the underlying pathology during his second period of service. Therefore, service connection is warranted for bilateral, high frequency, sensorineural hearing loss, on the basis of aggravation. II. Tinnitus Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Tinnitus is not shown to have been reported during the appellant's active military service. When seen at the VA audiological clinic in April 1992, the appellant reported that tinnitus occurred in both ears for the majority of the time. The VA audiological evaluation in April 1992 indicated that the appellant had moderate, bilateral, high frequency, sensorineural hearing loss, and tinnitus in both ears. Chronic tinnitus may be causally or etiologically related to sensorineural hearing loss. Robert W. Baloh, The Special Senses, in 2 Cecil Textbook of Medicine, 2098, 2107-2108 (James B. Wyngaarden, M.D., et al. eds., 19 ed. 1992). As the pathology underlying the appellant's current tinnitus cannot be clearly disassociated from his service-connected bilateral, high frequency, sensorineural hearing loss, and was not shown until the bilateral hearing loss increased in severity during his second period of active service, the Board has determined that the evidence pertaining to the claim of entitlement to service- connection for tinnitus is in equipoise. When there is an approximate balance of the positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the benefit of the doubt is extended to the appellant, and service connection is granted for tinnitus on a secondary basis. ORDER Service connection is granted for bilateral, high frequency, sensorineural hearing loss and for tinnitus. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.