Citation Nr: 1128141	
Decision Date: 07/28/11    Archive Date: 08/04/11

DOCKET NO.  09-40 917	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and D. R. 


ATTORNEY FOR THE BOARD

C. Fetty, Counsel
INTRODUCTION

The Veteran performed active military service from June 1952 to June 1954.  

This appeal arises to the Board of Veterans' Appeals (Board) from a July 2007-issued rating decision of the Department of Veterans Affairs (VA) special processing unit in Cleveland, Ohio, that denied service connection for a hearing loss disability and for tinnitus.  The claims files have since been transferred to the Chicago, Illinois, Regional Office (RO).  

During a hearing before the undersigned Veterans Law Judge, the Veteran submitted new evidence that has not been considered by the RO.  The Veteran has waived his right to RO consideration of this evidence.  Thus, a remand will not be necessary for this procedural safeguard.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).


FINDINGS OF FACT

1.  The Veteran is a combat veteran who was exposed to loud noise and artillery blast during combat in Korea.  

2.  A current bilateral hearing loss disability for VA purposes is shown.

3.  Tinnitus is currently shown.

4.  Competent medical evidence tends to relate a bilateral hearing loss disability and tinnitus to noise exposure during active service.  






CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was incurred in active military service.  38 U.S.C.A. §§ 1110, 1111, 1112, 1154, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2010).

2.  Tinnitus was incurred in active military service.  38 U.S.C.A. §§ 1110, 1111, 1112, 1154, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided in 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), VA has a duty to notify and assist the claimant in the development of the claims.  In this case, the Board is granting the benefits sought on appeal.  Accordingly, the duty to notify and the duty to assist need not be discussed.  

Service Connection

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime).  38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2010).  

Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships."  Caluza, 7 Vet. App. at 509.  

Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  38 C.F.R. § 3.303(a).

"Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein.  When there is an approximate balance of 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 claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Combat Veteran Status

According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case.  More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b).  
There is evidence of combat service in Korea.  A DD-214 reflects that the Veteran served with a field artillery battery in Korea during the Korean Conflict.  He testified competently, credibly, and persuasively that he was in combat with the enemy for about 10 months in Korea, firing a 155-mm howitzer daily during that time.  Although his DD-214 does not reflect an award of a medal or citation that conclusively demonstrates participation in combat, such as a Purple Heart Medal, considering the places, types, and circumstances of his service, his DD-214, and all pertinent lay evidence, it appears at least as likely as not that the Veteran is a combat veteran.  

Bilateral Hearing Loss Disability and Tinnitus

Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 (2010), which provides:

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 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. 

In Hensley v. Brown, 5 Vet. App. 155, 159, (1993), the Secretary posited that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385.  VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue.  For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. §  3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.  

The National Personnel Records Center (hereinafter: NPRC) has reported that the Veteran's service records were destroyed in a fire at that location.  NPRC reported in April 2007 that there is no Surgeon General's Office record available.  A separation examination report was located, however.  The separation examination report reflects that the Veteran did not undergo an audiometric evaluation at separation.  Rather, a whispered voice test was administered.  Because no audiometry data at separation is available, it is not possible to determine whether an upward shift in hearing thresholds occurred during active service.  

May 2007 VA audiometric testing reveals that the Veteran's bilateral hearing loss meets VA's disability requirements at this time, as a bilateral profound high frequency sensorineural hearing loss is shown.  Concerning a link between active service noise trauma and the current hearing loss (and tinnitus), the audiologist dissociated the current hearing loss and tinnitus from active service, but then qualified that opinion by noting that the claims file was unavailable.  The audiologist added, "If evidence of hearing loss or tinnitus is contained in the C-file, this opinion is subject to change."  The audiologist based the negative opinion on the absence of any documented treatment for hearing loss for nearly 50 years after active service.  

At various times thereafter, the Veteran submitted statements to the effect that he had hearing difficulty and tinnitus at all times since active military service and that these caused hearing difficulties that affected his career as a firefighter.  In March 2008, two retired firefighter comrades co-signed a letter to that effect.

In October 2009, the VA audiologist who had examined the Veteran in May 2007, reconsidered the prior negative opinion in light of the two corroborating firefighters and the Veteran's insistence that he had attempted to get hearing aids after active service.  The audiologist noted the likely effect of artillery blast and overpressure during active service and changed her/his opinion to, "...I support his ...claim and support his request to reconsider the original decision."  

In an August 2010 supplemental statement of the case, the RO concluded that the above statement does not tend to link hearing loss or tinnitus to active service.  

In April 2011, the Veteran testified before the undersigned Veterans Law Judge that he suffered ear damage from a nearby explosion while fighting in Korea.  He testified that he tried to get a hearing aid about two years after discharge from the Army.  He testified that he has had constant hearing trouble and tinnitus in civilian life after active service.  He testified that he was in combat in Korea for about 10 months. 

The Veteran's testimony and statements concerning noise exposure and noise trauma during active service are credible as they are consistent with his service record.  His testimony of continuity of relevant symptoms after active service is also credible.  The Board concludes therefore that there is a medically sound basis for a VA health professional to attribute the current hearing loss and tinnitus to noise exposure in service.  No evidence of intercurrent cause has been submitted.  While a negative nexus opinion was submitted, that opinion was offered with qualifications.  Later, the offeror of that opinion changed her or his mind and offered a favorable nexus opinion.  

The favorable medical opinion is therefore competent, credible, and probative, as it is based on accurate facts and is supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). 

Moreover, the lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity.  Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  In Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007), the Federal Circuit stressed that a lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional.  In this case, the Veteran's lay evidence supports a later diagnosis by a medical professional.  Thus, it must also be afforded some weight in the matter.

After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim.  Service connection for a bilateral hearing loss disability and for tinnitus must therefore be granted.  


ORDER

Service connection for a bilateral hearing loss disability is granted.  

Service connection for tinnitus is granted.



____________________________________________
F JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs