Citation Nr: 1537256	
Decision Date: 08/13/15    Archive Date: 09/04/15

DOCKET NO.  11-08 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Peters, Counsel



INTRODUCTION

The Veteran had active duty service from July 1982 to July 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss and tinnitus.  The Veteran timely appealed that decision.  

The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

By resolving all doubt in his favor, the evidence demonstrates that the Veteran's tinnitus began during, and has been chronic and continuous since discharge from, military service, where he was exposed to artillery and generator noise as an Air Defense Short Range Artillery Gunnery Crewman.


CONCLUSION OF LAW

The criteria establishing service connection for tinnitus have been met.  38 U.S.C.A §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).  With respect to the tinnitus claim, as service connection is awarded as discussed below, further discussion of the VCAA is not warranted at this time, as this decision represents a full award of benefits able to be awarded on appeal as to that issue.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

"[L]ay 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, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2014). 

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and tinnitus 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 such 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 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).

Turning to the evidence of record, the Veteran's service treatment records document that there was no evidence of complaints, treatment, or diagnoses of tinnitus throughout those records.  The Veteran was shown to have normal ears in his March 1982 enlistment and May 1984 separation examinations.  

The Veteran filed his claim for service connection in November 2009.  In his claim, the Veteran indicated that he was a short range artillery gunnery crewman, as a M167 VULCAN Air Defense System Gunner.  He reported being around loud noise in service daily, from both the artillery and generators used to power that equipment that ran constantly.  The Veteran's Form DD-214 confirms that his military occupational specialty was "Air Defense Artillery Short Range Gunnery Crewman."

The first evidence of any audiological symptoms is in an April 2009 VA treatment record, which demonstrates a past medical history of tinnitus.  The Veteran complained at that time of worsening hearing loss and was noted as having "Tinnitus+++."  He was referred for an audiological consultation at that time.  

In October 2009, the Veteran underwent a VA audiological consultation.  The Veteran complained of progressive worsening of his bilateral hearing loss that began in the early 1980's at that time.  With regards to his past medical history, the Veteran reported having bilateral intermittent tinnitus, a high pitch ring, that occurred daily lasting minutes to hours.  He also reported having military noise exposure to artillery fire and that he "sometimes" used hearing protection; he also reported occupational noise exposure working in a landfill with use of hearing protection.  The Veteran denied any recreational noise exposure.  The VA audiologist at that time, however, did not pursue the Veteran's tinnitus complaints further at that time.  

The Veteran underwent a VA audiological examination in January 2010.  At that time, the examiner noted the Veteran's service treatment records, including hearing acuity testing by VA in March 1982, an audiogram obtain in February 1984, and his separation examination in May 1984, as well as the October 2009 audiological consultation.  At that time the Veteran complained of bilateral hearing loss and tinnitus.  Respecting the tinnitus, the Veteran reported having current bilateral intermittent tinnitus, which occurs daily but only is present about three-quarters of the time.  He reported that the ringing in his ears "began in the early [19]80s," although he could not recall a date/circumstance of onset.  After audiological examination, the examiner opined as follows with respect to the Veteran's noted bilateral hearing loss and tinnitus:

Bilateral hearing loss and tinnitus IS NOT CAUSED BY OR A RESULT OF in-service noise exposure while serving as an air defense artillery short range gunnery crewman during military service. . . . Regarding hearing loss and tinnitus, [the] Veteran asserts that both began in the "early 80s" when he was around military noise (especially generators).  Pre-enlistment hearing evaluation indicates that hearing loss pre-existed military noise exposure.  Hearing evaluation at discharge indicates hearing loss did not significantly change throughout military service.  In addition, rising configuration of hearing loss is not consistent with hearing loss related to noise exposure.  Medical evaluation to determine etiology of hearing loss is advisable.  It is therefore my opinion that [the] Veteran's bilateral hearing loss and tinnitus is not caused by or a result of in-service noise exposure.

The Veteran submitted a March 2011 private audiologist's opinion; however, that opinion is limited solely to his bilateral hearing loss and does not mention his tinnitus at all.

In his February 2010 notice of disagreement, the Veteran reiterated that he "developed ringing in the ears" during military service as a result of being around the short range artillery and generators.  He did not complain of the ringing in the ears during service because "what could anyone do to fix something like this so why should I complain to anyone while I was in service about this."  After service, he noted that he could "hear over this ringing but as my hearing has worsened I can no longer hear well with tinnitus."  The Veteran concluded, "The ringing in my ears did not start on its own.  This came from powering generators on a daily occurrence to test, operate, and fire the weapon system."  

The Veteran made similar arguments in his March 2012 and August 2012 substantive appeals, VA Forms 9; specifically, in the August 2012 substantive appeal, the Veteran stated, "I have had tinnitus since service.  I have been able to hear well over it until the past couple of years, but is here constantly."

Based on the foregoing evidence, the Board finds that service connection for tinnitus is warranted.  Specifically, the Board finds that the Veteran is currently diagnosed with tinnitus, as tinnitus is a disorder capable of lay diagnosis.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Moreover, the Board additionally concedes that the Veteran has in-service noise exposure, as an Air Defense Short Range Artillery Gunnery Crewman, both to the artillery and to the generators used to power that equipment.  The first two elements of service connection are therefore met in this case.  

In this case, the Board notes that the private examiner does not address tinnitus in the opinion.  Likewise, while the VA examiner renders a negative opinion as to the Veteran's tinnitus, the rationale supporting that negative opinion generally discusses the Veteran's claimed bilateral hearing loss.  Moreover, the VA examiner does not address the extremely competent and credible lay evidence of record, namely the Veteran's consistent statements that his tinnitus began in service while working with artillery and generators, and which has been present ever since that time.  When weighing the VA examiner's opinion against the Veteran's extremely competent, credible, and consistent statements, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus was incurred in or otherwise the result of military service.  

Accordingly, by resolving all doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted based on the evidence of record in this case at this time.  See 38 C.F.R. §§ 3.102, 3.303(b); Walker, supra.  In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for tinnitus is granted, subject to governing criteria applicable to the payment of monetary benefits.  


REMAND

With regards to the Veteran's bilateral hearing loss claim, the Board notes that the following audiometric data was obtained in the Veteran's March 1982 enlistment examination:  



500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
RIGHT
20
30
15
15
10
LEFT
40
40
30
10
10







The Veteran then underwent a private audiological examination three days later, the results of which are as follows:



500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
RIGHT
20
20
5
-
10
LEFT
25
30
25
-
5






Finally, the Veteran's hearing acuity was re-tested in April 1982 by the Air Force, which revealed the following audiometric data:



500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
RIGHT
20
20
5
5
5
LEFT
25
40
25
10
5






The Veteran's hearing acuity was also obtained prior to his separation from service in February 1984; the results from that test appear to be the basis for the audiometric data recorded on the Veteran's May 1984 separation examination.  However, it appears that when those results were transcribed onto the May 1984 separation examination form, the ears were transposed.  Thus, the Board finds that the February 1984 Hearing Conservation Data, Form DD 2216, is a more accurate reflection of the Veteran's hearing acuity on separation from service.  Those results are as follows:



500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
RIGHT
25
35
15
10
15
LEFT
30
40
25
20
10






Based on the foregoing audiometric data from military service, the Board finds first that the Veteran had a hearing loss disability under 38 C.F.R. § 3.385 in his left ear at enlistment into military service.  However, the Veteran's right ear is not shown to have a hearing loss disability under 38 C.F.R. § 3.385 either at enlistment or separation from military service.  

Accordingly, the Board finds that the Veteran had a pre-existing left ear hearing loss on enlistment into military service that was noted on his entrance examination; thus, the Veteran is presumed sound as to his right ear, but not his left ear, on his entrance into military service.  See 38 U.S.C.A. § 1111 (West 2014).  

In light of that finding and the above noted January 2010 VA examiner's opinion, the Board finds that the opinion is inadequate as it fails to address the Veteran's left ear as a pre-existing disability, which requires an aggravation opinion that was not provided.  Moreover, the examiner stated that there was a decrease in the Veteran's hearing acuity, although such was not significant; the examiner did not further address why such was not significant, particularly in light of the apparent evidence of an increase in symptomatology related to the Veteran's pre-existing left ear hearing loss disability.  Accordingly, the Board finds that a remand is necessary in order to afford the Veteran another VA examination and to obtain a more adequate medical opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). 

Additionally, the Veteran indicated that he could provide the private examiner's audiometric findings along with the submitted March 2011 opinion; it does not appear that any attempts to obtain any outstanding treatment records from that private treatment provider has been made.  Thus, on remand, attempts to obtain those identified private records, as well as any other identified private treatment records and any relevant ongoing VA treatment records should be accomplished and those records should be associated with the claims file.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Fort Myers and Bay Pines VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since October 2009 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his bilateral hearing loss, which is not already of record, to specifically include any treatment by the March 2011 private audiologist at Harbor Audiology.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Schedule the Veteran for a VA audiological examination to determine the nature and etiology of his claimed bilateral hearing loss.  The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.  (The examiner should conduct an audiological examination and report the puretone thresholds and the Maryland CNC speech discrimination scores obtained.)  


During the examination, the examiner should address the Veteran's history of hearing loss, to include when the onset of symptomatology began, as well as his history of noise exposure before, during, and after military service.  

For the Veteran's left ear hearing loss: The examiner should opine whether his left ear hearing loss disability was aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his military service, to include his exposure to acoustic trauma as an Air Defense Short Range Artillery Gunnery Crewman, both artillery and generator noise.

For purposes of this opinion, the examiner should take as conclusive fact that the Veteran had a left ear hearing loss disability on his entrance into military service and that he is not sound as to any left ear hearing loss disability present.  

In so rendering the above requested opinion, the examiner should first focus on whether there was an increase in the Veteran's left ear hearing loss disability during military service.  The examiner should specifically address the apparent increase in hearing acuity loss during military service from the April 1982 audiogram at entrance and the February 1984 audiogram at separation, as well as the January 2010 VA examiner's opinion that such increase was not significant.

The examiner is reminded that an increase in symptoms of the disorder/symptomatology would be of the type that was permanent in nature; an acute and transitory increase in symptomatology that resolves and leaves a claimant no more disabled than when he began the period of service would not be considered an increase in symptomatology/disorder.

If the examiner finds that an increase in the Veteran's left ear hearing loss disability occurred during military service, the examiner should then opine whether the increase in symptomatology clearly and unmistakably was not due to military service, but rather was due to the normal progression of that disease.  The examiner should point to the specific clear and unmistakable evidence relied upon for the finding of non-aggravation by military service, if the examiner makes such a finding.  

For the Veteran's right ear hearing loss: The examiner should opine whether it is more likely, less likely, or at least as likely as not (50 percent or greater probability) caused by or otherwise related to military service, to include any acoustic trauma therein, as noted above.  

The examiner should take as conclusive fact that the Veteran did not have a right ear hearing loss disability on entrance into military service and is presumed sound as to that disability.

The examiner should also specifically address the Veteran's lay statements regarding the onset of symptomatology and continuity of symptomatology since onset.  The examiner should also address the other audiological evidence in the claims file, including the March 2011 private audiologist's opinion, as well as the threshold shifts noted in the Veteran's service treatment records.

The examiner should focus specifically on whether the noise exposure in service is the cause of his current right ear hearing loss, as well as whether such hearing loss began during or was initially manifested military service.  Facts and medical principles relied on to arrive at an opinion should be set forth, including any principles relating to the possibility of a delayed onset of loss of acuity due to noise exposure in service.

Finally, regardless of the above opinions, the examiner should opine whether the Veteran's bilateral hearing loss more likely, less likely or at least as likely as not is (a) caused by; or (b) aggravated by, his service-connected tinnitus.

All opinions must be accompanied by a clear rationale.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

4.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for bilateral hearing loss.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs