Citation Nr: 1452559 Decision Date: 11/28/14 Archive Date: 12/02/14 DOCKET NO. 12-24 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from June 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the current appeal, and specifically in February 2014, the Veteran testified at a videoconference hearing conducted before the undersigned. A transcript of the testimony has been associated with the Veteran's claims file. Lastly, the Veteran submitted additional evidence to the Board after the appeal was certified to the Board. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2014). FINDINGS OF FACT 1. The Veteran has bilateral hearing loss that is likely attributable to noise exposure in service. 2. The Veteran has tinnitus that is likely related to noise exposure in service. CONCLUSIONS OF LAW 1. The Veteran has bilateral hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 101, 1110, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2014). 2. The Veteran has tinnitus that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hearing Loss The Veteran contends that he developed bilateral hearing loss due to exposure to acoustic trauma while serving in the military. He further maintains to have experienced on-going hearing problems since this time. In considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2014). 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) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). In the alternative, if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (2014). The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the appellant's in-service exposure to noise and current disability. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2014). The absence of in-service evidence of a hearing loss during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. The Board finds that service connection for bilateral hearing loss is warranted. In making this determination, the Board highlights that the post-service medical evidence of record demonstrates that the Veteran has been diagnosed with bilateral hearing loss. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). In this regard, the Veteran underwent a VA audiological evaluation in May 2009, the findings of which showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 25 30 35 LEFT 55 55 50 55 60 Results from this audiological evaluation establish that the Veteran has a current hearing disability that satisfies the criteria under 38 C.F.R. § 3.385 (2014). Turning to the service treatment records, at a February 1967 examination pursuant to the Veteran's enlistment into the U.S. Navy, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied having a medical history of ear trouble or hearing loss. On audiological examination, the examiner found pure tone thresholds, in decibels, to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) 0(10) 0(5) LEFT 15(30) 15(25) 5(15) 0(10) 0(5) [The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As these evaluations were conducted prior to October 1967, the Board has converted the ASA units (first threshold listed at each frequency) to ISO units (second threshold listed at each frequency) as shown above.] At a March 1971 separation examination, the clinical evaluation of the Veteran's ears and drums was shown to be normal, and on the authorized audiological evaluation pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 5 LEFT 25 35 25 15 0 (The Board acknowledges that the Veteran's audiometric test results at separation revealed diminished hearing acuity in the left ear, when compared to his audiometric findings at his enlistment.) During his hearing, the Veteran described his exposure to acoustic trauma while serving in the U.S. Navy, and specifically recalled experiencing noise exposure while participating in small arms training. According to the Veteran, he was responsible for handling various types of weaponry during this training, including shot guns, grenade launchers, and rifles. He recalled participating in what were called sea trials, during which time he and his fellow servicemen were tasked with firing countless rounds of ammunition at numerous targets for practice. The Veteran also recalled being assigned to work as a loader of the 40 millimeter (mm) gun mount. Although the Veteran initially stated that ear plugs were provided during training, his subsequent testimony reflects that he was uncertain as to whether ear plugs were in fact provided. The Veteran stated that he noticed a certain level of hearing loss in his left ear close in time to his discharge from service, and specifically whenever he talked on the phone, adding that it always felt as though the sound was somewhat muffled. The Veteran further noted that he worked in an office-type environment for a trucking company, and later on as a car salesmen after service, and denied any occupational noise exposure after service. See February 2014 Hearing Transcript, pp. 3-4, 6, 8-9. With regard to the credibility of the Veteran's statements, the Board notes that "definitions of credibility do not necessarily confine the concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility. . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted). Indeed, the Board can find no information in the claims file that calls into question the Veteran's statements about noise exposure from the noises and sounds produced from gunfire while participating in small arms training. While every detail of the Veteran's description has not been corroborated, there is nothing in the record that specifically contradicts the Veteran's account of having been exposed to extreme noise levels in service. Indeed, it is feasible that the Veteran was exposed to significant acoustic trauma while surrounded by, and working with, small arms weaponry and working within close proximity to the firing of guns-especially if he was not provided with any form of hearing protection. Therefore, the Board concludes that the Veteran's description of noise exposure while participating in small arms training is credible, and concedes that the Veteran was exposed to extreme noise levels during service. Thus, the remaining question pertaining to service connection is whether the Veteran's hearing loss is related to his military noise exposure. A VA audiological examination was conducted in May 2009, at which time, the Veteran provided his military history, and described a history of noise exposure while serving in the military and working with, and near, small arms and artillery fire. The Veteran denied a significant history of occupational noise exposure, and did report a history of occasional recreational noise exposure from sounds produced by lawn mowers, weed trimmers, leaf blowers, power tools, and chainsaws. The VA examiner reviewed the available medical records, and noted that the only examination available during the Veteran's period of service was the 1971 separation examination report, which indicated that the Veteran's hearing was within normal limits bilaterally, with a mild loss at 1000 Hertz in the left ear that did not rise to a disabling degree. According to the examiner, given that the Veteran's hearing was within normal limits for disability purposes at the time of the last examination in service, and given the lack of any frequency-specific testing from the year after service indicating that a hearing loss had manifested to a compensable degree of severity by that time, it can be determined that the Veteran's current hearing loss is less likely as not due to noise exposure in the military. In a subsequent opinion dated in November 2009, the February 1967 audiological evaluation conducted during the Veteran's enlistment was made available to the same VA examiner who evaluated him in May 2009, and he was asked to provide an addendum opinion after taking these audiometric findings into consideration. Based on his review of the additional records, the VA examiner once again found that the Veteran's audiometric findings at his separation examination were within normal limits in the right ear, and within normal limits for disability purposes in the left ear. According to the examiner, given that his hearing was within normal limits for disability purposes in 1971, and given the lack of any examinations in the year after service reflecting that a disabling degree of hearing loss had developed by that time, "it is less than likely that any hearing loss which developed at a later date would be due to noise exposure during military service from 1967 to 1971." According to the examiner, in light of the audiometric findings at the separation examination, a review of the enlistment examination would not result in a change of the opinion originally provided. The Veteran underwent a private audiological evaluation in February 2014, at which time he provided his medical and military history and reported that the onset of his hearing problems began during his service in the Navy, prior to his discharge. The Veteran recalled working with and near different types of firearms during small arms training, and reported that he often handled grenades, rifles, shotguns, and machine guns; and he even loaded the 40 mm gun mount. According to the Veteran, hearing protection was not provided during training. The Veteran also recalled that during the last two years of his service, he worked in a payment disbursement office on a ship, at which time he supervised work crews, served as a boat coxswain, dropped percussion grenades, and worked with machinery grinders while stationed in Vietnam. The results of his evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 30 40 50 LEFT 55 60 60 65 65 The word recognition scores using the Maryland CNC list revealed a score of 98 percent in the right hear, and 92 percent in the left ear. Based on their review of the audiometric findings, the audiologists found that the composite audiological test results indicated a bilateral, sensory hearing loss with degree of severity ranging from mild to severe in the right ear, and moderate to moderately severe in the left ear. According to the audiologists, the Veteran's hearing loss was more likely than not caused by, a result of, or worsened by his in-service noise exposure. In reaching this conclusion, the audiologists relied on a medical literature article issued through the American National Standards Institute, which reflected that the average and otherwise healthy person will have essentially normal hearing sensitivity to at least 60 years of age, if his or her unprotected ears are not exposed to high noise levels surpassing 85 decibels. Another medical article referenced by the audiologists indicated that aging by itself should not prevent the average person from enjoying normal hearing throughout all or most of his or her working career, but unfortunately, this was not the case for those who are occupationally exposed to high noise levels. The audiologist also focused on data issued through the Occupational Safety Health Administration (OSHA) which provided the age related hearing threshold for an adult white male over the age of 60 years. Based on the data provided, the audiologists determined that a certain level of the Veteran's hearing loss may be attributed to factors other than his age. The audiologists ultimately based their conclusion on these articles, and the fact that the Veteran only reported a history of exposure to excessively loud noise while serving in the U.S. Navy. The audiologists also noted that the Veteran was not provided with any form of hearing protection during his training, and there were no other factors in the Veteran's history that would predispose him to experiencing hearing loss. The Veteran has described a history of exposure to loud sounds in service and has stated that his hearing loss began prior to his separation from service. The Veteran is competent to report his experiences and symptoms in service. The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. In the instant case, the Board finds that while the evidence is not unequivocal, after reviewing all the evidence on file, and when reasonable doubt is resolved in favor of the Veteran, the probative evidence suggests that the Veteran's currently diagnosed hearing loss is at least as likely as not attributable to acoustic trauma sustained in service. The Board acknowledges the May 2009 and November 2009 VA medical opinions which do not relate the Veteran's hearing loss to service. In rendering these negative opinions, the VA audiologist predominantly relied on the Veteran's normal audiological results at the time of discharge. By noting that the Veteran was shown to have normal hearing on his separation examination report, the VA audiologists may have been "implying" that had there been noise-induced hearing loss in service, it would have been detected by the evaluation at separation. Nevertheless, the VA audiologists did not state such a premise clearly, and the Board concludes that "inferring" that this is what they meant from what they did say would be tantamount to the Board rendering its own unsubstantiated medical opinion, and the Board is precluded from doing so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). On the other hand, the February 2014 private audiologists considered the Veteran's description of his in-service experiences and his exposure to loud sounds while working with, and in close proximity to, small weapons and artillery equipment, and rendered an opinion that not only took into consideration these experiences as well as the audiometric findings, but relied upon and referenced a number of medical literature articles that focused on what the average hearing threshold should be for an adult male close to the Veteran's age, as well as effects of occupational noise exposure on hearing levels. In light of the positive February 2014 opinion, which indicates that, at minimum, the evidence fails to suggest an etiology for the Veteran's hearing loss other than his exposure to noise in service, and given the Board has conceded that the Veteran had noise exposure in service, and the record reflects that he completed small arms training, and denied any post-service occupational noise exposure, the Board will resolve reasonable doubt about the connection between the current hearing loss and the noise exposure in service in his favor and grant service connection for hearing loss. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Tinnitus In considering the evidence of record under the laws and regulations concerning service connection, the Board concludes that the Veteran is entitled to service connection for tinnitus. As previously discussed, the Veteran maintains that he was exposed to extreme noises and sounds while participating in small arms training during his period of service. During his February 2014 hearing, although the Veteran testified that he began experiencing a ringing sound in his ears many years after service, he also stated that he began experiencing difficulty hearing prior to his separation from service. See February 2014 Hearing Transcript, pp. 3-4, 11. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). In this case, the Board has granted the Veteran's claim for service connection for bilateral hearing loss based on his description of his in-service exposure to acoustic trauma while performing his military duties. That the Veteran has hearing loss adds to the credibility of his contention that he has tinnitus because "an associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Concerning this matter, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. With regard to the latter, the Board has granted service connection for hearing loss in this case because the evidence is at least in equipoise that the hearing loss was noise-induced, i.e., a result of his exposure to acoustic trauma during service. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Ch. 85, Inner Ear. Based on his audiological evaluation of the Veteran, as well as his review of the Veteran's reported statements, the May 2009 examiner diagnosed the Veteran with having tinnitus and determined that in light of its late date of reported onset, the Veteran's tinnitus is less likely as not due to noise exposure in the military. Although the Veteran has noted that he first noticed the onset of his tinnitus ten years prior, during his hearing, he did recall experiencing a possible ringing sound in his ears when firing some of the weapons during small arms training, and especially while the 40 mm gun was firing. See Hearing Transcript, p. 8. Importantly, as previously discussed, the Board has conceded the Veteran's in-service acoustic trauma. Furthermore, the cited provisions from The MERCK Manual confirm that tinnitus usually accompanies noise-induced hearing loss. In other words, if a veteran has noise-induced hearing loss (as the Veteran here does as a result of his in-service acoustic trauma), that person is likely also to have noise-induced tinnitus. Importantly, the Board has determined that the Veteran's contention that he experiences tinnitus constitutes competent and credible evidence upon which the Board may rely in making its decision. Furthermore, despite the fact that the evidence of record is absent any treatment for, or diagnosis of tinnitus until many years after service, the Veteran has stated that he began experiencing difficulty hearing during service. Thus, based on the Veteran's now service-connected bilateral hearing loss, his diagnosis of tinnitus, his conceded in-service noise exposure, the provisions from medical literature noted above and the Veteran's statements, the Board concludes that evidence for and against the claim for service connection for tinnitus is at least in approximate balance. In other words, the Board finds, based on this record that the Veteran's tinnitus is as likely the result of his noise exposure in service or associated with his service-connected noise-induced bilateral hearing loss as it is the result of some other factor or factors. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires and grant service connection for tinnitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs