Citation Nr: 1301776 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-49 592 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran was granted service connection for lumbar spine intervertebral disc syndrome with degenerative changes and radiculopathy of the right lower extremity in the April 2010 rating decision. The Veteran timely submitted a Notice of Disagreement and a Statement of the Case was issued in September 2010. However, on the December 2010 Form 9, the Veteran stated that he only wished to appeal the issues of entitlement to service connection for bilateral hearing loss and tinnitus. Therefore, the claim for entitlement to an initial increased disability rating for lumbar spine intervertebral disc syndrome with degenerative changes and radiculopathy of the right lower extremity are no longer on appeal and will not be addressed. The Veteran testified at a Travel Board hearing before the undersigned Veteran Law Judge in May 2012 at the RO. A transcript of that hearing has been reviewed and associated with the claims file. A January 2013 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 all doubt in the Veteran's favor, bilateral hearing loss is causally related to noise exposure during active service. 2. Resolving all doubt in the Veteran's favor, tinnitus is causally related to noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations. II. Merits of the Claims The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus as a result of acoustic trauma he sustained in active duty service. Governing Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 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, 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 (2012). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." See 59 Fed. Reg. 17,297 (April 12, 1994). To establish service connection, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) 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). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one 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. Factual Background and Legal Analysis The Veteran maintains that service connection is warranted for hearing loss and tinnitus associated with acoustic trauma reportedly sustained in during his military service in the infantry. The Veteran testified at the May 2012 Board hearing that he was exposed to rifles, machine guns, hand grenades, bazookas, and mortars. He stated the while he was stationed in Korea, he was guarding a pass while under mortar fire. He stated that he noticed hearing loss and ringing in his ears soon after he separated from the military. The Veteran stated he experiences constant ringing in his ears bilaterally. The Veteran testified that following separation from service, he was employed at the FMC Corporation where he "did the mailing and the printing of all the forms" in the office and was not exposed to loud noises. He stated that if he was in the plant, he was required to wear hearing protection. The Veteran reported he was first diagnosed with hearing loss two years ago. See Board hearing transcript, dated May 2012. The Veteran's April 1964 separation examination report revealed normal hearing bilaterally, without evidence of any hearing deficit. The Veteran's in-service treatment records are silent of any complaint, treatment or diagnosis for any audiological disorders. According to the Veteran's military personnel records, his MOS was a light weapons infantryman. There is also evidence that the Veteran's duties included construction equipment operator and heavy vehicle driver. Post-service the Veteran was first seen for symptoms of hearing loss and tinnitus in September 2009 by the Coastal Hearing Solution, Inc. where he was diagnosed with severe to profound high frequency hearing loss in both ears where his right ear was worse than his left. The Veteran had difficulty "understanding conversation in noise environments as well as soft speech." See Coastal Hearing Solution, Inc. letter, dated October 2009. The Veteran was afforded a VA audiological examination where he reported the conditions existed since 1960 and his exposure to noise during fire drills and field operations without hearing protection. After service, he was employed at a textile mill for ten years without hearing protection. He described ringing in both ears and difficulty hearing in crowds. On the authorized audiological evaluation, the Veteran's measured puretone air conduction thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 20 25 50 RIGHT 15 20 45 70 85 Bone conduction studies showed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 LEFT 5 15 20 25 55 RIGHT 5 15 45 65 80 Speech audiometry revealed speech recognition ability of 92 percent in the left and right ears. The audiologist diagnosed the Veteran with bilateral sensorineural hearing loss (moderately severe in the right ear and mild in the left) with asymmetry and bilateral constant tinnitus, which was at least as likely as not associated with hearing loss. The audiologist opined, "it is less likely than not that the current hearing loss and tinnitus are a result of military noise exposure in his position as a light weapons infantryman. The rationale for this is based on the medical records that were reviewed, the hearing loss and tinnitus were not present at the time of discharge from active duty." See VA examination, dated January 2010. The Board acknowledges that the post-service treatment records does reflect bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. The Veteran has repeatedly asserted that he suffers from ringing in the ears. In this case, the Board observes that tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board finds credible the Veteran's report of currently having tinnitus. In light of the foregoing, the Board finds that the Veteran currently has hearing loss and a tinnitus disability. In addition, the Board acknowledges the Veteran's report of being exposed to acoustic trauma in service (i.e. firing weapons, exposure to gunfire) to be credible given his consistent statements of noise exposure and his MOS. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). Service incurrence of an acoustic trauma injury has been demonstrated. A finding of a nexus between the Veteran's current bilateral hearing loss and tinnitus and his in-service noise exposure is still needed to substantiate a claim of service connection. The Veteran testified under oath before the Board that he experienced a lot of ringing in the ear and noticed decreased hearing following service. He has consistently maintained this position since then. The Board finds his assertions concerning in-service noise exposure, symptoms of hearing loss and tinnitus, and the continuity of such symptomatology since service to be credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). In view of the totality of the evidence, including the Veteran's documented in-service duty assignment, the recognition of in-service noise exposure, current findings of bilateral hearing loss and tinnitus, and the credible lay assertions of record, the Board finds that bilateral hearing loss and tinnitus are causally related to noise exposure during active service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs