Citation Nr: 1300182	
Decision Date: 01/03/13    Archive Date: 01/11/13

DOCKET NO.  07-34 664A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran appellant had active service in the United States Army from June 1969 to March 1971, including approximately 11 months in Vietnam.  

This case originally came before the Board of Veterans' Appeals (Board) from appeal from rating decisions issued by the above Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied the appellant's claims of entitlement to service connection for bilateral hearing loss and tinnitus.  The Board remanded the case for additional development in May 2011; the case has now been returned to the Board for appellate review.


FINDINGS OF FACT

1.  The appellant spent 11 months in an infantry unit in Vietnam and was exposed to acoustic trauma from combat-related noise.

2.  The evidence for and against the appellant's claim is at least in relative equipoise on the question of whether currently diagnosed bilateral hearing loss is related to acoustic trauma in service.

3.  The evidentiary record raises a reasonable doubt as to whether the appellant has tinnitus which had its onset during his service in the Army.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Board is granting in full the benefit sought on appeal (service connection).  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and need not be discussed further.  

II. The Merits of the Claims

In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Furthermore, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The appellant contends that he currently suffers from bilateral hearing loss due to noise exposure from mortar and grenade explosions and small arms fire related to his duties while on active duty in the Army in Vietnam.  He maintains that his bilateral hearing loss is related to his in-service noise exposure.  He also contends that his tinnitus is related to his in-service noise exposure and/or to his high frequency sensorineural hearing loss.  The appellant's service personnel records reflect that he served in Vietnam for approximately 11 months and that he was an infantryman while in the Army.

To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury.  Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a).

A veteran's lay statements may be competent 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.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  A problem hearing is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

The evidence of record includes statements from the appellant to the effect that he experienced tinnitus shortly after his return from Vietnam which has continued to the present time.  He has also stated that he experienced problems with hearing loss shortly after his return from Vietnam which have continued to the present time.  The evidence of record also includes written statements from the appellant's spouse.  In her written statements the appellant's spouse indicated that she had been married to the appellant for 40-plus years and that he had always had a lot of trouble with his ears ringing.  In a July 2007 letter, she said that the appellant has always had hearing problems with his left ear being worse.

The determination of whether a veteran has a compensable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  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."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Id. at 157.  

Review of the appellant's service medical treatment records reveals that he underwent a service separation examination in February 1971.  He did not report any problems with hearing loss or tinnitus.  The appellant underwent an audiometric examination at that time; the puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
0
LEFT
0
0
0
N/A
0

While the audiogram tracing from the appellant's entrance examination is of record, the tracing from the service separation examination is not of record.  The lack of this tracing and the results all being zero without any variation lend some suspicion about the reliability of those results.

The appellant underwent VA audiometric testing in August 2003; the examiner reviewed the appellant's claims file.  The appellant reported military noise exposure from heavy artillery and weapons fire while he was in Vietnam.  Post-service, he reported that he had used hearing protection while working.  The appellant denied recreational noise exposure post-service.  He complained of constant unilateral tinnitus on the left; he said that he was not sure when it had started although he had had it for many years.  The puretone threshold results, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
35
45
LEFT
15
20
20
40
75

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.  Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

The examiner stated that because the March 1971 audiometric testing results were within normal limits, it was unlikely that the current hearing loss or tinnitus was service-connected.

The appellant also underwent VA audiometric testing in January 2004; the examiner reviewed the claims file.  The appellant reported experiencing constant bilateral tinnitus and he said that it had gradually been getting worse over the prior ten years.  He also said that he fired a grenade launcher on a regular basis while he was in Vietnam.  He denied post-service occupational and recreational noise exposure, although he did run farm equipment.  The puretone threshold results, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
35
45
LEFT
15
20
20
45
70

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

The examiner noted that the appellant's audiogram was within normal limits at the time of his service separation examination in 1971, and therefore concluded that it was not possible to attribute the etiology of his current hearing loss to service.  The examiner also concluded that the tinnitus was not related to the appellant's military service.

The appellant subsequently underwent additional VA audiometric testing in June 2011; the examiner reviewed the claims file.  The appellant reported experiencing constant left ear tinnitus and he said that he had first notice it in service.  He also said that he was exposed during service to loud noises from weapons such as a grenade launcher.  His post-service occupational and recreational noise exposure involved some factory work and some farm equipment.  The puretone threshold results, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
25
45
30
LEFT
30
45
60
75
70

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 60 percent in the left ear.  Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

The VA audiologist concluded that the appellant's bilateral hearing loss was less likely as not caused by or the result of his military service because the results of the 1971 separation examination did not show the presence of hearing loss.  The examiner stated that tinnitus is as likely as not a symptom associated with hearing loss.  The examiner noted that the Institute of Medicine has determined that, if noise exposure has occurred, there is no way to predict how much hearing loss would be sustained, if any.  The examiner further noted that there are multiple causes (such as aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics, etc.) for sensorineural hearing loss such as the appellant's and that an exact etiology could not be determined in most cases.  However, it is not clear that the examiner considered the appellant's reports (or those of his spouse) that he had experienced problems with his hearing shortly after his return from Vietnam.

The evidence unfavorable to the claim for service connection for hearing loss in this case consists of the service separation examination report which contains no mention of hearing loss; the many years between service and clinical documentation of hearing loss; and the negative VA audiology opinions.  However, each negative opinion is based on the accuracy of the 1971 service separation audiogram.  As discussed above, the reliability of those results is in doubt.  Furthermore, the most recent opinion states that there are multiple causes for sensorineural hearing loss including the noise exposure experienced by the appellant during service.  Thus, his hearing loss could be etiologically related to service or it could not.

Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from bilateral sensorineural hearing loss, and that he served in Vietnam in combat as an infantryman while he was on active duty in the Army.  Based on the appellant's service record, it may be assumed that he experienced noise trauma associated with his Army duties.  See VA Fast Letter No. 10-35 (Sept. 2, 2010).  In addition, the Veteran is competent to assert the occurrence of in-service injury.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The Board accepts the Veteran's assertions of in-service noise exposure and chronicity of symptoms as credible.

Since no other explanation other than acoustic trauma in service has been specifically advanced to account for the appellant's current hearing deficits, these facts and the doctrine of reasonable doubt provide a proper basis for granting service connection for bilateral hearing loss.  For these reasons, the Board finds that evidence for and against the appellant's claim is at least in relative equipoise on the question of whether the currently diagnosed bilateral hearing loss is related to acoustic trauma in service.  

Therefore, the evidence for and against the Veteran's claim for service connection for bilateral hearing is at least in approximate balance.  The Board will resolve any doubt in the Veteran's favor and finds that the Veteran's bilateral hearing loss is as likely the result of his noise exposure in service as it is the result of some other factor or factors.  Accordingly, service connection is warranted for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Turning to the tinnitus claim, the appellant has stated that he had first noticed the ringing in his ears shortly after his return from Vietnam, and he has further stated that the tinnitus has continued to the present time.  The Board finds the Veteran's statements in this case to be credible/believable.  

In addition, the appellant has herein been granted service connected for his bilateral hearing loss based on acoustic trauma in service and the Board notes that "an associated hearing loss is usually present" with tinnitus.  THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id.  This was also stated in the June 2011 VA examining audiologist's report.  "High frequency tinnitus usually accompanies [noise-induced] hearing loss."  THE MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear.

A veteran's lay statements may be competent 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.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Ringing in the ears is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from service-connected bilateral sensorineural hearing loss, as well as from tinnitus, and that he served in combat in Vietnam while he was on active duty.  Based on the appellant's service record, it may be assumed that he experienced noise trauma associated with his Army duties.  In addition, the Veteran is competent to assert the occurrence of in-service injury.  See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  

The evidence for and against the claim for service connection for tinnitus is at least in approximate balance.  The Board finds that the Veteran's tinnitus is as likely the result of his noise exposure in service or it is as likely a symptom of his service-connected noise-induced hearing loss as it is the result of some other factor or factors.  Accordingly, service connection is warranted for tinnitus.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is granted.





____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs