Citation Nr: 1112762	
Decision Date: 03/31/11    Archive Date: 04/07/11

DOCKET NO.  08-29 808A	)	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 bilateral tinnitus.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant, L.H., and K.H.


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel
INTRODUCTION

The appellant served on active duty from October 1965 to October 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claims of entitlement to service connection for bilateral hearing loss, bilateral tinnitus, and hypertension.  The appellant submitted a Notice of Disagreement with this determination in January 2008.  A Statement of the Case was issued in September 2008, and in October 2008, the appellant indicated that he wished only to perfect the issues of entitlement to service connection for bilateral hearing loss and bilateral tinnitus.  Thus, the issue of entitlement to service connection for hypertension is not before the Board and it will not be addressed herein.

In August 2010, the appellant testified before the undersigned Acting Veterans Law Judge, sitting in St. Petersburg, Florida.  A transcript of that proceeding has been associated with the appellant's VA claims file.


FINDINGS OF FACT

1.  The appellant currently suffers from bilateral hearing loss that is the result of a disease or injury in active duty service.

2.  The appellant currently suffers from bilateral tinnitus that is the result of a disease or injury in active duty service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2010).
2.  Tinnitus was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the appellant's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations, as set forth under the VCAA, have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  However, since this decision constitutes a complete grant of the benefits sought on appeal, the appellant cannot be prejudiced by any possible defect in VA's VCAA obligations.  Therefore, the Board finds that a discussion of the VA's "duty to notify" and "duty to assist" obligations is unnecessary.  

II.  The Merits of the Claims

The appellant contends that he currently suffers from bilateral hearing loss and bilateral tinnitus as a result of his time in active duty service.  Specifically, the appellant alleges that his duties as a crewman in Vietnam exposed him to acoustic trauma.

Governing Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002).  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.  See 38 C.F.R. § 3.303(b) (2010).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2010).

In order to establish service connection for the claimed disorder, there must be (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) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).


Additionally, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  See 38 C.F.R. § 3.303(d) (2010).  Furthermore, sensor neural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  See 38 C.F.R. §§ 3.307, 3.309 (2010).

With hearing loss claims, VA may only find hearing loss to be 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 are less than 94 percent.  See 38 C.F.R. § 3.385 (2010).

Tinnitus has been variously defined.  It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane").  See Butts v. Brown, 5 Vet. App. 532, 540 (1993).  It is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  See YT v Brown, 9 Vet. App. 195, 196 (1996).  It is a ringing, buzzing noise in the ears.  See Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin."  See 59 Fed. Reg. 17,297 (April 12, 1994).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2).  In this regard, the Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009)

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See 38 C.F.R. § 3.303(a) (2010); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Analysis

With respect to Shedden element (1), current diagnosis, the Board notes that during his April 2007 VA audiological examination, the appellant's measured puretone threshold values were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
30
75
80
LEFT
15
15
75
70
75

Thus, the appellant has a current diagnosis of bilateral hearing loss, for VA purposes.  Furthermore, the appellant was diagnosed with tinnitus.  Shedden element (1) has been satisfied.  See 38 C.F.R. § 3.385 (2010); see also Shedden, supra.

Review of the appellant's service records reveals that his Military Occupational Specialty (MOS) was listed as a crewman.  See DD Form 214.  Though there are no complaints of bilateral hearing loss or tinnitus during the appellant's time in service, his MOS as a crewman is consistent with his complaints of acoustic trauma in service.  Furthermore, the Board finds that the appellant is both competent and credible to report on the fact that he was exposed to loud noises during service and that he suffered from decreased hearing acuity and tinnitus since that time.  See Davidson, supra; Buchanan, supra; Jandreau, supra.  Therefore, the Board concedes that the appellant was exposed to loud noise during service.  Thus, Shedden element (2), in-service disease or injury, has been satisfied.  See Shedden, supra.

With respect to crucial Shedden element (3), nexus, the medical evidence of record consists of medical opinions both for and against the appellant's claims.

In April 2007, the appellant participated in a VA audiological examination.  At that time, the appellant reported that during his time in service, he was exposed to 155 Howitzers and small arms fire, without hearing protection.  After he was discharged from service, the appellant worked as a carpenter for approximately 10 years without hearing protection and thereafter, he worked for twenty-one years in a paper mill, with hearing protection.  The appellant was diagnosed with bilateral sensorineural hearing loss, with mild to severe hearing loss in the right ear between 2000 and 4000 Hz, and severe hearing loss in the left ear between 2000 and 4000 Hz, dropping precipitously.  The appellant was also diagnosed with constant bilateral subjective tinnitus.  See VA Audiological Examination, April 17, 2007.

The April 2007 VA examiner opined that the appellant's tinnitus was consistent with his hearing loss, and felt it was at least as likely as not due to the same etiology.  Military acoustic trauma was conceded, and the appellant reported the onset of hearing loss and tinnitus during service.  However, the VA examiner noted that there was no evidence of onset or aggravation of hearing loss in service that would be consistent with hearing loss or tinnitus from acoustic trauma, as the audiograms revealed the appellant's hearing was within normal limits at the time of his separation.  This was considered to be inconsistent with the appellant's report of onset of in-service hearing loss.  Therefore, the VA examiner concluded that the appellant's current hearing loss and tinnitus were less likely as not due to or a result of his claimed in-service acoustic trauma.  The appellant's hearing disabilities appeared to be more likely a post-service occurrence due to non-military etiologies such as aging, diabetes, and civilian noise exposure.  The VA examiner further noted that it would be speculative to allocate a degree of the appellant's current hearing loss and tinnitus to each of these etiologies.  Id.

The Board notes that whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  It appears that the April 2007 VA audiologist provided a conclusory statement without providing any support therefore.  Furthermore, the holding in Hensley v. Brown, 5 Vet. App. 155, 158 (1993), clearly established that when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Accordingly, the April 2007 VA examiner's opinion lacks significant probative weight.

In support of his claims, the appellant refers to a February 2007 VA audiological consult.  At that time, the appellant was seen for a hearing evaluation.  The appellant reported no family history of hearing loss and he had not experienced sudden hearing loss, dizziness, ear surgeries, drainage, or perforated tympanic membrane in the past.  There was also no ototoxic drug history.  Audiometry results indicated normal hearing through 1500 Hz, dropping to a severe high frequency sensorineural hearing loss in both ears with no retro-cochlear indications noted.  Word recognition scores were 100 percent in the right ear and 92 percent in the left ear.  The VA audiologist noted that this loss had the classic characteristics of a noise-induced hearing loss.  Considering the appellant's account of noise trauma while in the military, it was considered plausible that the hearing loss was at least in part caused by the noise exposure the appellant experienced on active duty, although his noise exposure did continue after service.  See VA Audiology Consult, February 13, 2007.



Furthermore, in September 2010, the appellant submitted a statement from his private Ear, Nose, and Throat physician, N.B., M.D., which stated that the appellant's military service and noise exposure was responsible for his bilateral sensorineural hearing loss and tinnitus.  See Private Treatment Record, N.B., M.D., September 13, 2010.

The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In the present case, the Board concludes that the evidence is at least in equipoise and entitlement to service connection for bilateral hearing loss and tinnitus must be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010).

Further, the Board notes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Furthermore, the Board finds the appellant's claims regarding his having problems with tinnitus and bilateral hearing loss since shortly before his separation from active duty competent and credible evidence of continuity of symptomatology because the presence of these disorders is not a determination "medical in nature" and they are therefore capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra.

Therefore, with granting the appellant the benefit of any reasonable doubt in this matter, the Board concludes that service connection for tinnitus and bilateral hearing loss are warranted because the record contains medical evidence of a current disability, evidence of the in-service incurrence of an injury, and medical evidence of a nexus between the in-service injury and the current disabilities.  See 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010); Shedden, supra.



ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Entitlement to service connection for bilateral tinnitus is granted.



____________________________________________
TARA L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs