Citation Nr: 1300308 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-30 616 ) 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. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from September 1972 to October 1975. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the claims of entitlement to service connection for bilateral hearing loss and tinnitus, and a TDIU. The Veteran presented testimony before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is associated with the claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, bilateral hearing loss is causally or etiologically related to his military service. 2. Resolving reasonable doubt in favor of the Veteran, tinnitus is causally or etiologically related to his military service. 3. The evidence indicates the Veteran is currently employed. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, 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, 3.385 (2012). 2. Resolving reasonable doubt in favor of the Veteran, 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 (2012). 3. The criteria for assignment of a TDIU have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, a letter dated in October 2008 addressed the TDIU claim - this letter was issued prior to the initial denial in by the RO in April 2009. The letter also explained the requirements for TDIU under 38 C.F.R. § 4.16(a) and explained how disability ratings and effective dates would be assigned. It provided the Veteran with information regarding evidence received, evidence VA is responsible for obtaining, and evidence that VA will make reasonable efforts to obtain. Moreover, the record shows that the Veteran was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his TDIU claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran the opportunity to give testimony before the Board. In sum, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Service Connection - Applicable Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including sensorineural hearing loss (as organic disease of the nervous system) will be presumed if such disease becomes manifest to a compensable degree within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For the purpose of applying the laws administered by VA, impaired hearing is 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board acknowledges that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the United States Court of Appeals for Veterans Claims has held that where there is no evidence of the veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Factual Background and Analysis The Veteran seeks service connection for hearing loss and tinnitus disabilities. He contends that he was exposed to acoustic trauma for a period of thirty-four consecutive months as a combat engineer. The claimed acoustic trauma consists of noise from small arms fire, explosives/mines, air compressors, gas generators, demolitions, and chainsaws. In addition, he asserts that he exposed to excessive noise while operating turbo diesel powered trucks/armored vehicles, and while building/fixing floating metal bridges. He has consistently denied any significant pre-service and post-service occupational noise exposure, and essentially contends that he has experienced near-continuous hearing loss and tinnitus symptomatology since shortly after his separation from service in the 1970's. See, generally, June 2012 Statement from Veteran; see also May 2012 Hearing Transcript. With respect to the current disability requirement, VA and private audiological testing show that the Veteran has a bilateral hearing loss disability. 38 C.F.R. § 3.385. See April 2009 VA examination; see also Dr. Collier, Audiogram, June 2012. In addition, inasmuch as the diagnosis of tinnitus is essentially based on subjective accounts, and because the Veteran has reported he has such disability, it may be conceded that he has a current disability of tinnitus. Moreover, tinnitus was most recently formally diagnosed upon private audiological examination in June 2012. See Audiogram, Dr. Collier, June 2012. Therefore, the first Shedden element has been met in this case. With respect to the second Shedden element, the Veteran's DD Form 214 confirms that he served in his specialty as a combat engineer for a period of three years. Service treatment records also indicate that the Veteran was struck in the right ear by debris in April 1973, with resulting dizziness and loss of equilibrium, but no noted hearing loss. The remainder of the Veteran's service treatment records are silent as to complaints, diagnoses, or treatment relating to hearing loss or tinnitus. Nevertheless, as outlined above, the Veteran has consistently and competently stated that he was exposed to hazardous noise as a combat engineer. As noted above, this included ongoing exposure to explosives, demolition, bridge construction, and firearms, among other acoustic trauma in-service. See, e.g., July 2004 Statement from Veteran. Based on the Veteran's statements, as well as his MOS (the duties of which are consistent with noise exposure), acoustic trauma is conceded as consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a), see also Layno v. Brown, 6 Vet. App. 465 (1994). An in-service injury has therefore been demonstrated. With respect to the third Shedden element, the Board acknowledges that there are conflicting opinions of record as to the issue of nexus. In this regard, the July 2008/April 2009 VA examiner opined that it was less likely than not that tinnitus and hearing loss were caused by, or the result of, noise exposure during military service. The VA examiner reasoned that there were no complaints of hearing loss or tinnitus at the time of separation, and that there was no evidence of chronicity or continuity of care for hearing loss or tinnitus for decades following service. However, the Board finds the VA examiner's opinion to be of little probative value in this case. First, the examiner summarily dismissed the Veteran's competent statements regarding in-service symptoms of hearing loss and tinnitus, and ongoing symptoms thereafter. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate if the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In addition, the examiner made no findings with respect to the debris injury to the right ear during service. Again, while the Veteran does not claim that his hearing loss stems from this incident, a complete and comprehensive audiological examination with review of the claims file would have noted the in-service ear injury, at the very least. The VA examiner also failed to discuss the notable absence of post-service occupational noise exposure. For all of these reasons, the Board assigns little probative value to the VA opinion. The claims file also contains a positive opinion with respect to the issue of nexus. Indeed, the Veteran submitted a June 2012 private audiological report from Dr. Collier, M.D., in which he reported a history of military noise exposure with subsequent hearing problems both during and after service. A complete audiological examination was performed; both tinnitus and bilateral sensorineural hearing loss were diagnosed. Dr. Collier opined that the Veteran's hearing loss was compatible with noise-induced hearing loss. While it does not appear that Dr. Collier reviewed the claims file in conjunction with his opinion, he conducted a thorough audiological examination of the Veteran; fully contemplated the Veteran's statements regarding in-service symptomatology and post-service symptoms; and evaluated the type of hearing loss present and concluded it was consistent with noise induced hearing loss, as based on the Veteran's competent reports. For these reasons, the Board assigns greater probative value to Dr. Collier's opinion. Thus, considering the totality of the evidence, to include the Veteran's competent and credible assertions hearing loss and tinnitus symptoms during service and thereafter (i.e., continuity of symptomatology); Dr. Collier's probative and positive opinion with respect to hearing loss (and the less probative, negative VA opinion);the conceded in-service acoustic trauma as a result of his duties as a combat engineer; and the absence of evidence of post-service acoustic trauma, the Board finds that the evidence is at least equipoise on the question of a nexus, based on continuity of symptomatology, between service and the current bilateral hearing loss and tinnitus. See 38 C.F.R. § 3.303(b). Resolving reasonable doubt in the Veteran's favor, the claim of service connection for bilateral hearing loss is granted and the claim of service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board finds that the evidence of record is at least in equipoise. While the March 2006 VA examiner provided a negative nexus opinion, this opinion was based, in part, on the absence of documented hearing loss after service and the lack of any hearing difficulty during VA outpatient treatment in June 2005. In support of his claim the Veteran has submitted lay statements describing hearing difficulty since returning from active duty, had an addendum issued to the June 2005 treatment record documenting his difficulty hearing, and has submitted a positive nexus opinion from a private health care provider. Accordingly, the Board finds that the benefit of the doubt rule is for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). The third Shedden element has been met. The benefit sought on appeal is accordingly granted. TDIU The Veteran also contends that a TDIU is warranted. He specifically asserts that his service-connected hearing loss adversely affects his ability work as funeral director. See Hearing Transcript, p. 9. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). By virtue of this decision, the Veteran is now service connected for bilateral hearing loss and tinnitus, the effective dates and disabilities ratings of which are to be assigned by the RO. These are the only disabilities for which service connection is in effect. The Board has carefully reviewed the record, to include the Veteran's hearing testimony, as well as information forms submitted by former/current employers. In this regard, the Veteran submitted a statement in July 2008, in which he indicated that he was no longer employed. In November 2008, a VA Form 21-4192 (Request for Employment Information in Connection With Claim for Disability Benefits) shows that the Veteran was employed by Samaritan's Purse as a data processor and that he was working 8 hours per day/40 hours per week. The form noted that the beginning employment dated was November 10, 2008, and ending employment date was "N/A," or not applicable. At his May 2012 hearing before the undersigned, the Veteran and his representative asserted that his hearing loss adversely affected his employment, but that the Veteran was currently working and earning minimum wage ($7.25/hour) in addition to "four percent over $25,000 in sales." Most recently, in June 2012 letter in support of his claim, the Veteran indicated that he was currently employed in the area of funeral fundraising, and worked out of his home and at the funeral home office in Gastonia, North Carolina. In this case, the Board does not even reach the threshold question of whether the Veteran meets the schedular requirements for TDIU under 38 C.F.R. § 4.16(a); indeed, the evidence clearly reflects that the Veteran is gainfully employed, and thus, entitlement to a TDIU is denied. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to TDIU is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs