Citation Nr: 1301033	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  12-24 740	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Jewish War Veterans of the United States


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel



INTRODUCTION

The Veteran served on active duty from February 1946 to July 1947.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for bilateral hearing loss and tinnitus.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's bilateral hearing loss is causally or etiologically related to his military service.

2.  The Veteran's tinnitus is causally or etiologically related to his military service.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was incurred in active service.  38 U.S.C.A. §§ 1110, 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).

2.  Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.303	 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)).  The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants.

The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issues of entitlement to service connection for bilateral hearing loss and tinnitus, no further discussion of the VCAA is required with respect to these claims.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d) (2012).

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 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 using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley, 5 Vet. App. at 159.  In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, 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.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

In the present appeal, the Veteran maintains that he has bilateral hearing loss and tinnitus as a result of his exposure to extreme noise levels while serving in the U.S. Army during World War II.  His service separation qualification record shows that his service included the military occupation specialty armored basic and that he served in Japan, taking photographs covering the Allied occupation of Japan in 1946.  In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss and tinnitus.

A review of the claims folder indicates that the RO attempted to obtain the Veteran's records service treatment records (STRs) from the National Personnel Records Center (NPRC), but was unable to secure them, or any records from the Office of the Surgeon General, due to fire-related causes.  A Formal Finding on the Unavailability of Service Records was issued in June 2011, which detailed the attempt made to obtain the service treatment records from the NPRC.  It was ultimately determined that all efforts to obtain the needed military information had been exhausted, further efforts would be futile, and that based upon these facts, the Veteran's STRs were not available.  In addition, the available records reveal that before 2002, the Veteran was treated for hearing problems by Dr. A. Jahn.  Attempts were made to develop those records, but Dr. Jahn's office reported that he only maintained his medical records for 7 years and that he had no records for the Veteran.  Accordingly, the Board determines that further efforts to develop Dr. Jahn's records would be futile.  

In his written statements, the Veteran reported that his hearing loss and tinnitus began during service and that he had been exposed to loud noises and sounds while firing cannons from tanks and Howitzers while he was in the officer candidate program (OCS) in Fort Knox.  He apparently provided his gunnery committee card showing he fired 76MM tank guns, a card showing he was enrolled as an officer candidate at Fort Knox, and a photograph of himself in an tank, but these items are no longer associated with the claims folder.  See written statement dated March 24, 2011.  

The Veteran is competent to describe what he experienced in service.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.")

Here, the Veteran's military records show that one of his military occupational specialties (MOS) was that of Armored Basic.  Accordingly, the Board concedes exposure to acoustic trauma in service.  The questions remain whether the Veteran currently has tinnitus; whether he has a current hearing disability for VA purposes, and if so, whether tinnitus and the hearing disability are related to the noise exposure in service.

The Veteran has provided reports of audiological evaluations with a private audiologist dated from 2002 to 2010.  As an example, the March 2004 evaluation showed pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
55
65
70
LEFT
25
55
80
100
105
 
The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the United States Court of Appeals for Veterans Claims (Court) is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing).  These findings meet the requirements of 38 C.F.R. § 3.385.  

Thus, the remaining question pertaining to service connection is whether the Veteran's bilateral hearing loss and tinnitus are related to his military noise exposure.  In this regard, in February 2011, the chief audiologist of a private audiological facility, E.C., noted that the Veteran had been her patient for over 15 years and that he had a history of noise exposure that began in 1946 when he was in OCS training at Fort Knox when he shot cannons from a tank.  She noted that he was not provided hearing protection and that he began "experiencing periods of tinnitus intermittently as well as periods of decrease in hearing sensitivity."  E.C. opined that "[t]he exposure while in OCS training without any hearing protection is, within reasonable certain[t]y, directly related to the [hearing] loss."

The February 2011 private audiologist considered the Veteran's description of his in-service experiences and his exposure to loud sounds while working with artillery, conducted 15-years' worth of audiological evaluation of the Veteran, and rendered an opinion based on these experiences and the examination results.  Based on the audiometric readings, she explained that the type and degree of the Veteran's hearing level is consistent with noise induced hearing loss, and determined that the Veteran's hearing loss was related to his military service.

The Veteran has described a history of exposure to loud sounds in service and has stated that his hearing loss and tinnitus began in service.  As previously discussed above, the Veteran is competent to report his experiences and symptoms in service.  The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible.

In considering the evidence of record, the Board finds that the Veteran's current hearing loss cannot be reasonably disassociated from his conceded in-service exposure to loud noises.  In arriving at this decision, the Board relies on the Veteran's conceded noise exposure, his credible post-service assertions that he has continued to experience hearing loss since his discharge from service, and the positive February 2011 private opinion.  

Given that the positive February 2011 opinion indicates that, at minimum, the Veteran's hearing loss is consistent with hearing loss due to noise exposure, and the record reflects that he served as an Armored Basic MOS, did not report significant occupational noise exposure, or any recreational noise exposure and the fact that the Board has conceded that the Veteran had noise exposure in service, the Board will resolve reasonable doubt about the connection between the current hearing loss and the noise exposure in service in his favor and grant service connection for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board grants the Veteran service connection for tinnitus based on the same claim of noise exposure.  The fact that the Veteran has been granted compensation for a service-related hearing loss, above, adds to the credibility of his contention that his tinnitus is related to service because "an associated hearing loss is usually present" with tinnitus.  The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  

As to the question of nexus, the Board notes that, in March 2010, the Veterans Benefits Administration (VBA) published a training letter concerning the adjudication of claims for hearing loss and/or tinnitus.  See VBA Training Letter 211D (10-02) (March 18, 2010).  As indicated in Training Letter 10-02, "[t]innitus is a symptom that is associated with many conditions, including acute noise exposure and noise-induced hearing loss."  

Here, the Board finds competent and credible the Veteran's assertion that his tinnitus had its onset in service, as there is no evidence suggesting otherwise.  It has also been established that the Veteran was exposed to acoustic trauma in service.  Further, the Veteran has reported continuous ringing in his ears since service.  In light of the lay evidence of record, in consideration of Training Letter 10-02, and in resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs