Citation Nr: 1303087 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-27 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to April 1962 and had subsequent service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A notice of disagreement was filed in January 2010, a statement of the case was issued in June 2010, and a substantive appeal was received in August 2010. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral hearing loss had its onset during the Veteran's active service. 2. Resolving all doubt in the Veteran's favor, tinnitus had its onset during the Veteran's active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred during active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran is seeking service connection for tinnitus and bilateral hearing loss. The Board concludes that the VCAA does not preclude the Board from adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting the benefits sought. See Bernard v. Brown, 4 Vet. App. 384 (1993). Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 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. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The Board acknowledges that the lack of any evidence that the Veteran exhibited hearing loss during service 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, as noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385. . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Review of the Veteran's claims file reflects that whispered voice testing conducted in February 1959 for enlistment purposes show that his hearing was 15 and 15 for both ears. Audiometric testing was not conducted. While the whispered voice test is not a valid assessment of hearing at the time of entrance or discharge, this was the customary test used during that period. Service treatment records are negative for pertinent complaints or findings pertaining to hearing loss or tinnitus. In January 1962, the Veteran underwent an examination for separation purposes which included audiometric testing. VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) units. Converted puretone findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 - 0 LEFT 15 15 5 - 5 His "ears-general" were clinically evaluated as normal. On a January 1962 Report of Medical History completed by the Veteran for separation purposes, he checked the "No" boxes for "ear, nose or throat trouble" and "running ears." Whispered voice testing conducted in September 1963 for enlistment in the National Guard show that the Veteran's hearing was 15 and 15 for both ears. His "ears-general" were clinically evaluated as normal. On a September 1963 Report of Medical History completed by the Veteran for purposes of enlistment in the National Guard, he checked the "No" boxes for "ear, nose or throat trouble" and "running ears." In August 2009, the Veteran underwent a VA examination. At that time, he reported military noise exposure as 105-millimeter and 8-inch Howitzer training. Occupational noise exposure was reported as truck driving, general construction, and carpentry. Recreational noise exposure was reported as some chainsaw use. (In a subsequent August 2010 statement, the Veteran reported that his chainsaw use was once or twice in 20 years.) He also reported that he had had a mass removed from the left ear. He reported the onset of tinnitus during military service. Upon audiological testing, the examiner diagnosed sensorineural hearing loss, right ear, normal to moderately severe, and sensorineural hearing loss, left ear, normal to severe. The examiner opined that his hearing loss and tinnitus were less likely than not caused by or a result of acoustic trauma. The examiner stated that the enlistment hearing test was a spoken whisper exam, which is not a valid measure to diagnose or to rule out hearing loss. The separation hearing examination revealed clinically normal hearing in each ear from 250 to 8000 Hertz. The Veteran further reported a post-military history of occupational and recreational noise exposure. As the Veteran's hearing was normal at discharge and he reported a history of post-military noise exposure, the examiner found that there was more evidence to suggest that the Veteran's current degree of hearing loss was not caused by military service. The examiner also noted that service treatment records were negative for tinnitus and that the Veteran denied "ear, nose or throat trouble" on his separation physical. The examiner concluded that the Veteran's tinnitus was likely secondary to the same non-military etiology that caused his hearing loss. Correspondence and accompanying audiological examination report dated in January 2010 from a private audiologist reflects that the Veteran was seen for an audiological evaluation. At that time, he reported a history of noise exposure while serving in the military, including a military occupation in heavy artillery. He claimed that he was exposed to hazardous noise levels and experienced temporary threshold shifts and intermittent tinnitus while performing his duties in the military. He reported that his tinnitus had become constant. He reported truck driving and construction following his military service, but stated he always wore hearing protection. Recreational noise included some chainsaw usage, but he reported that he always wore hearing protection. Puretone testing revealed a normal to moderate notched sensorineural hearing loss for his right ear, and normal to moderately severe notched sensorineural hearing loss for his left ear. The examiner noted that the Veteran's entrance examination-although considered normal-was a whisper test, which provides no frequency-specific information. His exit examination was also normal. The examiner reviewed the August 2009 VA hearing test and stated that it is "documented in the histopathology literature that outer hair cell damage in the cochlea occurs prior to an individual ever showing a threshold shift on an audiogram." The examiner opined that it is thus more likely than not that the Veteran's hearing loss and tinnitus are related to his military noise exposure but may have worsened as a civilian. She stated that her opinion was based on case history, configuration of hearing loss, and onset of tinnitus. In November 2012, the Board sought the opinion of a Veterans Health Administration (VHA) expert in clarifying the etiology of the Veteran's diagnosed hearing loss and tinnitus, based on the conflicting opinions of the August 2009 VA examiner and the January 2010 private audiologist. In January 2013, the VHA examiner submitted an opinion that reviewed the Veteran's history and rendered an objective opinion based on sound medical principles. In that opinion, the VHA examiner noted that the whispered voice testing performed at the Veteran's February 1959 entrance examination was not frequency specific, thus preventing her from determining if there had been a significant threshold shift at any frequency between the Veteran's entrance and separation from service. In addition, the examiner noted that the January 1962 separation audiogram did not record results from 3000 Hertz, making it impossible to determine if the Veteran had hearing loss for VA purposes at that frequency at the time of his separation from active duty. Finding that there was not enough evidence to rule out the possibility of hearing loss or threshold shift during the Veteran's service, the VHA examiner concluded that it is at least as likely as not that his current bilateral hearing loss is caused by or the result of military noise exposure. Similarly, she concluded that the Veteran's tinnitus is at least as likely as not related to service, given that "tinnitus is known to be consistent with hearing loss and/or standard threshold shift." Hearing Loss Service treatment records are negative for hearing loss, and the Veteran's hearing was normal during audiometric testing conducted at service separation in January 1962. The Veteran checked the "No" box for "hearing loss" upon separation from service, and no hearing loss was detected. An August 2009 VA examiner reviewed the record and opined that the Veteran's current hearing loss is not due to military noise exposure based on review of the claims folder. However, the January 2010 private audiologist opined that the Veteran's military noise exposure is a contributing factor to his hearing loss, and the January 2013 VHA examiner opined that it is at least as likely as not that his in-service noise exposure caused the Veteran's current bilateral hearing loss. When considering the Veteran's acoustic trauma in service, as well as the findings of the January 2013 VHA examiner, and resolving all doubt in the Veteran's favor, there is a basis for granting service connection for bilateral hearing loss. Tinnitus Service treatment records are void of any complaints or diagnoses of tinnitus. However, the Veteran asserts that his tinnitus is due to service. Based on the negative service treatment records, the August 2009 VA examiner opined that his tinnitus is less likely due to military noise exposure in service. The opinion of the VA examiner leads to a finding that the Veteran's tinnitus is less likely than not related to service. However, the January 2010 private audiologist examiner concluded that the Veteran's military noise exposure is a contributing factor to his current tinnitus. The January 2013 VHA examiner also found that the Veteran's current tinnitus is etiologically linked to his hearing loss, which she found is at least as likely as not attributable to acoustic trauma in service. Resolving all doubt in the Veteran's favor, the Board finds that tinnitus is related to the Veteran's noise exposure while in service. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs