Citation Nr: 1237229 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-19 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active air service from October 1968 until his retirement in October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2012 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims files. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT Bilateral hearing loss disability and tinnitus are etiologically related to noise exposure during active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 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). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Analysis The Veteran has asserted that he has bilateral hearing loss disability and tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran has reported that he was exposed to hazardous noise while performing the various duties of his position as a vehicle operator, dispatcher, driver, and in the transportation depot. He reported that he was regularly exposed to large engine truck noise, diesel engines, large generators, flight line noise, and bus noise. The Veteran also reported that he was exposed to large and small arms artillery fire while serving in the Republic of Vietnam and that he was witness to an explosion of an ammunition dump in 1971 while in the Republic of Vietnam. He reported that he was so near the explosion that the blast actually knocked him down. He reported that he immediately experienced hearing loss and tinnitus in both ears, but that it was worse in his right ear as his right side had been facing the ammunition dump at the time of the explosion. A review of the Veteran's DD Form 214 shows that his occupational specialty while in active service was vehicle operations supervisor. The Veteran also had service in the Republic of Vietnam. Therefore, the Board finds that the Veteran's reports of noise exposure during active service are both competent and credible. As such, the Board concedes the Veteran's acoustic trauma during active service. A review of the service treatment records (STRs) shows that at the time of his enlistment examination in September 1968, the Veteran was afforded an audiogram. The results of the audiogram were as follows: Hertz (Hz) 1000 2000 3000 4000 Right Ear -5 -5 N/A 5 Left Ear -5 -5 N/A 5 In September 1977, the Veteran was afforded a periodic examination. At that time, the Veteran was afforded an audiogram. The results of the audiogram were as follows: Hertz (Hz) 1000 2000 3000 4000 Right Ear 5 5 5 10 Left Ear 5 5 5 5 In September 1985, the Veteran was afforded another periodic examination. At that time, the Veteran was afforded an audiogram. The results of the audiogram were as follows: Hertz (Hz) 1000 2000 3000 4000 Right Ear 5 5 5 15 Left Ear 5 5 5 10 There is no separation examination or separation audiogram of record. The Board notes that while the Veteran did not have hearing loss for VA purposes at the time of his September 1985 audiogram, it is evident that his hearing acuity underwent a significant shift while he was in active service. The Veteran has consistently reported that he first experienced bilateral hearing loss disability and tinnitus while in active service and that he has continued to experience symptoms of such since his separation from such service. He reported that he did not seek formal treatment for his symptoms until they had progressed to a severity where they were particularly bothersome. The Board notes that the Veteran is competent to report when he first experienced symptoms of hearing loss and tinnitus and that they have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible in this regard. In May 2009, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported flight line noise exposure during his time in active service. He denied any post-service occupational noise exposure and reported recreational noise exposure in the form of rare hunting. Based on the history provided by the Veteran and an examination of the Veteran, the examiner diagnosed mild to moderately severe sensorineural hearing loss in the right ear, mild sensorineural hearing loss in the left ear, and tinnitus. The examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were not caused by or a result of acoustic trauma. In this regard, the examiner noted that the Veteran's exposure to high risk noise in the service was related to his working on or near the flight line. The examiner noted that the Veteran entered active service with normal hearing and that his discharge audiogram was not discovered for review, but that an examination conducted 17 years following his entrance into active service revealed normal auditory thresholds across the spectrum. The examiner further noted that the Veteran's current audiogram revealed high frequency sensorineural hearing loss (R>L) that was not consistent with noise exposure as the Veteran's post-service noise exposure was not considered to be excessive. Rather, the examiner opined that the Veteran's bilateral hearing loss disability was more likely than not related to an undiagnosed medical condition. The examiner noted that the Veteran was examined at an ear, nose, and throat (ENT) clinic recently and a magnetic resonance imaging scan (MRI) had revealed negative findings and so, the diagnosis for his condition was not resolved. As far as the Veteran's tinnitus, the examiner opined that the Veteran's tinnitus was more likely than not attributable to a non-acoustic condition. In this regard, the examiner reported that the Veteran's tinnitus was not time locked to an acoustic event. Further, the examiner reported that as the Veteran's right ear tinnitus was reportedly worse than the left ear tinnitus, it was not consistent with flight line noise exposure as that would have placed both the Veteran's ears in equal jeopardy. The Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 vet. App. 614 (1992). In this case, the Board declines to accept the VA examiner's opinion regarding the etiology of the Veteran's bilateral hearing loss disability and tinnitus as the VA examiner does adequately account for all of the Veteran's reported noise exposure during active service and his lay accounts of onset and continuity of symptomatology. In this regard, the Board notes that the VA examiner failed to account for the Veteran's report of somewhat significant noise exposure while in active service, not just while performing his duties on or near the flight line, but also while serving in the Republic of Vietnam. Further, the VA examiner did not address the Veteran's report that his right ear hearing loss was worse as a result of his right side facing the explosion of an ammunition dump while serving in the Republic of Vietnam. Additionally, while the VA examiner reported that the Veteran's hearing was normal across all auditory thresholds during active service; the examiner did not account for the fact that while the Veteran's hearing was normal, it did in fact go through a significant change from the time of his enlistment audiogram to the time of his September 1985 audiogram. The examiner also failed to account for the Veteran's report that he actually recalled experiencing symptoms of bilateral hearing loss disability and tinnitus while still in active service, in particular, immediately following being knocked to the ground by the blast from the ammunition dump explosion. Additionally, in forming the opinion, the VA examiner relied heavily on the fact that the Veteran's bilateral hearing loss disability and tinnitus were a result of some non-acoustic etiology. However, the examiner was unable to identify such an etiology despite the fact that the Veteran had been examiner by an ENT physician in this vein. Therefore, the May 2009 VA medical opinion is inadequate upon which to base a denial of entitlement to service connection. In July 2012, the Veteran submitted a letter from his private audiologist, Dr. B.B. In her letter, Dr. B.B. reported that she was unsure as to the justification for the denial of the Veteran's claim as he was able to pinpoint the date and location where his acoustic trauma occurred, was aware that his ears rang for several days just following the acoustic trauma, and was aware of the side of his head where the blast occurred. Dr. B.B. is obviously referring to the Veteran's report of witnessing the ammunition dump explosion while serving in the Republic of Vietnam. While Dr. B.B. did not clearly opine that the ammunition dump explosion caused the Veteran's bilateral hearing loss disability, her confusion as to why the Veteran's claim had not been granted given his ability to recall the acoustic trauma in question leads the Board to conclude that she believes that the Veteran's bilateral hearing loss disability and tinnitus were in fact a result of acoustic trauma the Veteran sustained while in active service. The Board notes that 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran is more than competent to identify bilateral hearing loss and tinnitus and his statements of such have been found credible. Furthermore, the Veteran's hearing acuity went through a significant shift while he was in active service. Additionally, the fact that the Veteran's right ear hearing loss is worse than his left ear hearing loss is consistent with the Veteran's report of his right side facing the blast of an ammunition dump explosion while he was serving in the Republic of Vietnam. In sum, the Board has conceded the Veteran's exposure to hazardous noise while in active service. The Veteran has competently reported that he first experienced hearing loss and tinnitus in active service and that he has continued to experience such since his separation from active service and these statements have been found credible by the Board. There is no persuasive medical opinion of record indicating that the Veteran's currently diagnosed bilateral hearing loss and tinnitus are not related to his noise exposure in active service. Finally, it can be inferred from the Veteran's private audiologist's letter that she believes that the Veteran's bilateral hearing loss disability and tinnitus had their onset during his active service as described. Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs