Citation Nr: 1648381 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 13-21 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1959 to May 1965 and from February 1966 to May 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. Following the hearing, additional evidence was submitted by the Veteran with a waiver of RO consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is reasonably shown to be due to his exposure to noise trauma in service. 2. The Veteran's tinnitus is reasonably shown to have had its onset in service and to have persisted since. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the benefits sought are being granted in full, there is no reason to belabor the impact of the VCAA on the matters; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Certain chronic disabilities, including sensorineural hearing loss (SNHL) and tinnitus (as organic diseases of the nervous system), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for SNHL and tinnitus). 38 C.F.R. § 3.309(a); see Fountain v. McDonald, 27 Vet. App. 258 (2015) (where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Hearing loss is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Competent medical evidence is needed where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also mean statements conveying sound medical principles found in medical treatises, and may include statements in authoritative writings, such as medical and scientific articles and research reports. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A veteran who served in combat is entitled to consideration of a claim seeking service connection for disability or disease incurred in or aggravated by such service under the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b). Bilateral Hearing Loss At the outset, it is noteworthy that the Veteran was awarded a Combat Infantryman Badge, (CIB), entitling him to consideration of his claim under 38 U.S.C.A. § 1154(b). It is not in dispute that he was exposed to hazardous levels of noise in service, including from combat. The Veteran alleges that he has bilateral hearing loss due to noise trauma in service. His service personnel records show that he served in the infantry and was exposed to heavy weapons fire in Vietnam. During his September 2016 Travel Board hearing, the Veteran testified that during his service he spent time in the armor, artillery, and infantry branches. It is not in dispute that he was exposed to hazardous levels of noise in service. On August 1958 service enlistment examination, the Veteran's whispered voice hearing acuity was 15/15 in each ear. His service treatment records (STRs) are silent for any complaints, findings, or diagnosis of hearing loss. On February 1979 service separation examination, audiometry revealed that puretone thresholds, in decibels, were: 1000 2000 3000 4000 R 5 5 / 15 L 15 10 / 15 On August 2011 VA examination, the Veteran reported exposure in service to small arms fire, heavy mortar fire, and artillery fire without hearing protection. Audiometry revealed that puretone thresholds were: 1000 2000 3000 4000 R 40 45 60 60 L 15 25 35 40 Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 96 percent in the left. The diagnoses were bilateral SNHL and constant tinnitus in the right ear. The examiner opined that the etiology of the Veteran's tinnitus was at least as likely as not associated with his hearing loss and suggested, because of the asymmetric nature of the hearing loss, that the Veteran be evaluated by an otolaryngologist to rule out retrocochlear involvement. The examiner opined that it is not likely that the Veteran's current [hearing loss and tinnitus] were incurred in service because his hearing thresholds were within normal limits on two re-enlistment physicals and on service separation examination. At the September 2016 hearing before the Board, the Veteran testified that he served in combat and spent his career in infantry, artillery and armor units which all contributed to cause his hearing loss. He described a specific incident of noise trauma in service when he was on a tank as it fired (after which his ears rang for several months). In an October 2016 opinion, a private otolaryngologist noted that the Veteran has a "very significant history of noise exposure in the military"; bilateral SNHL and right-sided tinnitus were diagnosed. The Veteran had related that during service a mortar landed to his right, resulting in a noisy explosion on that side. The provider noted that the Veteran's hearing loss was worse on the right, and opined that such finding is highly consistent with the Veteran's description of noise trauma in service, and that the Veteran's police experience would not have caused his hearing loss because then the hearing loss would be expected to be asymmetrical to the other side. The provider opined that the Veteran's hearing loss was more likely than not related to military noise trauma. It is not in dispute that the Veteran has a bilateral hearing loss disability, as such is shown by official audiometry. And, as is also noted above, it is likewise not in dispute that he was exposed to noise trauma in service, including from combat. What he must still show to substantiate this claim is that his hearing loss is related to his service, including as due to noise trauma therein. That is a medical question, requiring medical expertise. Jandreau, 492 F.3d at 1372. There are conflicting medical opinions in the record regarding whether the Veteran's hearing loss was incurred in service/is due to noise trauma therein. An August 2011 VA examining audiologist opined that the Veteran's hearing loss is unrelated to acoustic trauma in service since his hearing thresholds were within normal limits on two re-enlistment physicals and on service exit examination; but she also noted that the Veteran had an asymmetric hearing loss that required evaluation by an otolaryngologist to rule out retrocochlear involvement. Thereafter, the Veteran submitted for the record an October 2016 opinion regarding the etiology of his hearing loss by a private otolaryngologist. The consulting provider opined that the Veteran's hearing loss more likely than not is related to his exposure to noise in service. The opinion reflects consideration of the Veteran's reports of acoustic trauma in service (which are deemed credible) and the configuration of the Veteran's hearing loss as shown by contemporaneous audiometry. The provider explains that the Veteran's degree and pattern of hearing loss are consistent with his reports describing the nature of his noise trauma in service. The Board finds the opinion probative evidence in this matter, more probative than the opinion of the August 2011 VA examiner who did not similarly discuss the configuration of the hearing loss found, and the lay descriptions of the noise trauma in service. Resolving remaining reasonable doubt in the Veteran's favor (as required; see 38 C.F.R. § 3.102), the Board finds it persuasive and that service connection for bilateral hearing loss is warranted. Tinnitus The Veteran alleges that he has tinnitus due to noise trauma in service. There is no mention of tinnitus in his STRs. However, tinnitus is a disability that is diagnosed based on self-report (by the person experiencing it), and the explanation that it was present, but was not reported until it became more prominent and constant is plausible. The Veteran is competent to establish by his own accounts that he has tinnitus, when it first appeared, and that it has been continuous since service. Consequently, what remains to be determined is whether his testimony that his tinnitus began in service and has persisted since is credible (as that would suffice to substantiate his claim; see 38 C.F.R. § 3.303(b)). On August 2011 VA examination, the examiner noted that the Veteran reported experiencing tinnitus since 1997. The examiner opined it is not likely the Veteran's tinnitus began in service, as he reported that it began in 1997. At the September 2016 Board hearing, the Veteran recalled a specific incident of noise trauma in service when he was on a tank as it was firing rounds, and that he experienced ringing in his ears then, and for about six months thereafter. The ringing continued intermittently until 1997, when it became permanent. His spouse also testified that he had told her about his tinnitus during the intervening years. In October 2016 a private otolaryngologist opined that the Veteran's tinnitus was more likely than not related to his military noise exposure based on the Veteran's reports of exposure to mortar explosions and various firearms noise therein. The Board finds no reason to question the veracity of the Veteran's lay statement and testimony regarding the onset of tinnitus in service and continuity since; his explanation that the tinnitus has persisted on an intermittent basis since a specific mortar explosions incident in service (but not reported until it became more prominent and constant) is plausible and not inconsistent with the circumstances of his service. The Board notes the August 2011 VA examiner's opinion against the Veteran's claim, but also notes that that provider indicated that the tinnitus is associated with the Veteran's hearing loss (which is now service-connected). Accordingly, that provider's opinion can be considered supportive of the Veteran's claim. In light of the foregoing, considering the relaxed evidentiary standard afforded under 38 U.S.C.A. § 1154(b) regarding injury from noise trauma, and resolving remaining reasonable doubt in the Veteran's favor, as required, the Board finds that the Veteran's tinnitus was incurred in service, and that service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs