Citation Nr: 1301529 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-32 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from July 1956 to April 1960. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A review of the record indicates the Veteran raised claims for service connection for headaches and a concussion in a March 2012 statement. Neither of these claims has been adjudicated. As such, these matters are REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. The evidence of record demonstrates that hearing loss likely manifested during the Veteran's active service. 2. The evidence of record demonstrates that tinnitus likely manifested during the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the present case, the RO sent notification letters to the Veteran dated in January 2008 and March 2008. The record includes service treatment records, VA outpatient treatment records, private treatment records, reports of VA examinations, articles on hearing conservation and the Veteran's ship, and lay statements. The Board has considered whether further development and notice under the VCAA or other law should be undertaken. Given the results favorable disposition of the claims in the decision below, further development would not result in a more favorable result for the Veteran or be of assistance to this inquiry. Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for hearing loss and tinnitus. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance, and the appeals will be granted. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. 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). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for certain chronic diseases, such as sensorineural hearing loss, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under § 3.303(b), an alternative method of establishing the second and/or third Shedden elements is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (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, 10 Vet. App. at 495-96. The United States Court of Appeals for Veterans Claims (Court) held that as long as the condition is noted at the time a Veteran was in service such noting need not be reflected in any written documentation, either contemporaneous to service or otherwise. Id. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. Id. In this case, the Veteran was afforded a VA examination in May 2008. This examination demonstrated hearing acuity over 40 decibels in the 1000, 2000, 3000 and 4000 hertz thresholds bilaterally. Thus, the Veteran clearly has a current disability in accordance with 38 C.F.R. § 3.385. The May 2008 examination also noted the presence of tinnitus. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. The Veteran's service treatment records do not reflect any complaints, treatment or diagnoses of hearing loss or tinnitus. In fact, the April 1960 examination completed in connection with the Veteran's release from active duty described the ears as normal and noted hearing acuity of 15/15 on the whispered voice test. No defects or diagnoses were noted at that time. The Veteran, however, has presented testimony and statements alleging exposure to noise from serving as an aviation ordinanceman in the Navy. He reported having noise from the hangar deck and testified that one time a gun went off about 50 feet away from his ear. He explained he was blown back into the bulkhead and began having headaches and could not hear anything for approximately 20 to 45 minutes afterwards. The Veteran is competent to describe the symptoms he has experienced. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Furthermore, the Board finds the Veteran's testimony to be credible, as his description of symptoms has been consistent throughout the record, and his Form DD 214 corroborates his service in the Navy with a military occupational specialty of aviation ordinanceman. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The final element is competent evidence of a nexus between the current hearing loss and tinnitus and the noise exposure during service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). However, as noted above, in certain cases, competent lay evidence may satisfy any of the required elements. "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the 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). The Veteran was afforded a VA examination in May 2008 to assess the nature and etiology of the claimed hearing loss and tinnitus. The Veteran explained that he was exposed to anti-aircraft gunfire in service and had post-service noise exposure while working as a welder and truck driver and from recreational use of a motorcycle and carpentry work. He described having moderate, constant tinnitus for 20 years. The diagnoses were mild to moderately-severe sensorineural hearing loss of the right ear, mild to moderate sensorineural hearing loss of the left ear, and moderate, constant tinnitus. After reviewing the claims file and examining the Veteran, the examiner concluded that it was not possible to determine the etiology of the hearing loss without resort to mere speculation because there was no documentation of ear or frequency specific hearing levels during service and the reported history of significant noise exposure during and after service. The examiner indicated that it was not likely the tinnitus was a result of military noise exposure because there was no documentation of tinnitus in the service treatment records. The Veteran provided a June 2009 letter from a private audiologist. The audiologist indicated that the Veteran had progressive hearing loss and tinnitus. The audiologist opined that this may be due to the intense noise exposure during active military service when the Veteran worked in the gunnery as a bomb elevator operator and on the flight deck during flight operations and gunnery practice. The audiologist explained that based upon the case history, review of other jobs, and the test results, the Veteran's hearing loss and tinnitus was at the very least partially caused by his exposure to intense noise levels while in military service. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to obtain a more definitive opinion with a full rationale to reconcile the conflicting medical evidence and to provide an opinion as to the relationship between the Veteran's symptoms to the noise exposure during service. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, there is a VA examination report in which the examiner declined to provide an opinion as to the hearing loss and found it was not likely that the tinnitus was related to service. The examiner explained that he could not provide the opinion because of the lack of audiological findings during service and the Veteran's history of service and post-service noise exposure. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (indicating that the examiner must explain why the requested opinion would be speculative before the Board could rely on such a conclusion.). To the extent to which the examiner provided a negative opinion for the tinnitus, the examiner did not consider lay report of noise during service when rendering this opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where 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). There is also a positive opinion of a private audiologist who indicated that at least some of the hearing loss and tinnitus were caused by service. Although the private opinion does not specify the percentage, the opinion is clear that there is a component of the hearing loss and tinnitus that was caused by noise exposure during service. Additionally, the Veteran has provided statements and testimony as to the continuity of decreased hearing since service. In this regard, the Veteran is competent to testify as to his symptoms, including decreased hearing, as it is something of which he would have personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board also finds the Veteran's testimony of decreased hearing during and since service to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although there is a gap in the actual treatment records, there is nothing in the record that specifically contradicts the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Given the inconclusive VA examination, the private opinion indicating that at least some portion of the hearing loss and tinnitus is related to service, and the Veteran's competent and credible reported history of continuity of symptomatology since service, the Board finds that this is a situation where the benefit of the doubt rule applies. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, giving the Veteran the benefit of the doubt, service connection for hearing loss and tinnitus is granted. ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs