Citation Nr: 1303236 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-36 857 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to January 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied, inter alia, service connection for tinnitus and bilateral sensorineural hearing loss. In March 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans Appeals) that same month. After additional treatment records were acquired, a supplemental SOC (SSOC) reflecting the continued denial of the claim was issued in March 2011. In August 2012, the Veteran and his brother testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of hearing is of record. In connection with the hearing, the Veteran submitted lay statements by his wife and in-service colleague related to his hearing loss, along with waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. During Vietnam service, the Veteran served as a helicopter pilot, an occupation recognized as likely involving significant noise exposure, and he and a former service colleague have credibly asserted such actual exposure. 3. Although no hearing loss or tinnitus was documented during service, audiometric testing reveals current hearing loss to an extent recognized as s disability for VA purposes, and the Veteran asserts that he currently experiences persistent tinnitus. 4. Competent, credible, and probative lay evidence indicates that the Veteran experienced ringing in his ears during service, and diminished hearing shortly thereafter, and that these problems have essentially continued , to date. CONCLUSION OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing senorineural hearing loss are met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claims for service connection for bilateral hearing loss and for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. II. Factual Background The Veteran claims that his tinnitus and bilateral sensorineural hearing loss are due to in-service noise exposure are the result of noise exposure during military service when he was a helicopter pilot in Vietnam. His service treatment records (STRs) contain the reports of two audiometric evaluations during service. While these do not include an entrance examination, they do include an extension examination in September 1968 and a separation examination in October 1969. Audiometric testing during the Veteran's September 1968 examination revealed what were assessed as normal values, with pure tone thresholds measured in decibels (dB) and frequency measured in Hertz (Hz), as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 - 5 LEFT 5 0 5 - 5 On his October 1969 separation examination, his hearing loss was noted to have improved, with pure tone thresholds of zero for all frequencies in both ears; however, the report of that examination contains no other information about his hearing test results. A June 2003 audiogram reflects testing results graphical form, which the Board has the authority to interpret in the first instance as the finder of fact. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). The results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 40 LEFT 10 15 15 20 35 The audiologist noted that the Veteran had bilateral mild sloping to moderate sensorineural hearing loss above 3000 Hz, with excellent word recognition (100 percent in both ears). An audiology report dated in July 2007, does not include the results of an audiometric testing conducted at that time. However, it was noted that the Veteran had long-standing bilateral sensorineural hearing loss and long-standing bilateral tinnitus. He had a history of noise exposure to loud noise when he was a helicopter pilot in the Vietnam War. His testing results showed moderate to severe sensorineural hearing loss in the left ear above 2000 Hz and severe sensorineural hearing loss in the right ear. Word recognition was good in the right ear and excellent in the left ear. These results were essentially unchanged from the previous hearing in June 2003. The record also contains an audiogram dated a year later in July 2008. The graphical results reflect the following values: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 40 50 LEFT 15 15 20 25 50 According to the audiologist, the Veteran had mild sloping to severe sensorineural hearing loss in the right ear, which worsened about ten to twenty dB at higher frequencies compared to his previous testing in July 2007. Similarly, his left ear had mild sloping to moderate sensorineural hearing loss, which had also worsened about ten dB in the prior year. However, he had excellent word recognition, with a value of 100 percent in both ears. The Veteran had a VA compensation examination in January 2009. The audiologist reviewed the claims file, including the STRs, and found that the Veteran's history of service was positive for noise exposure as a helicopter pilot in Vietnam, during which time he was exposed to loud noise as a result of the turbine engine and rotor, as well as machine gun fire from the helicopter. Following service, he worked as a graphic artist and facilities maintenance manager, without loud noise exposure. The audiologist indicated that the Veteran reported that his bilateral tinnitus became "more noticeable" about six years prior, and that he did not recall a specific date of onset. He described the tinnitus as a "steady ringing tone." The January 2009 audiogram reflects the following testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 45 LEFT 15 15 20 25 55 In addition, the Veteran had Maryland CNC speech discrimination scores of 96 percent in each ear. The audiologist indicated that the Veteran had moderately severe to severe high frequency sensorineural hearing loss above 4000 Hz bilaterally. In addition, hearing aids were not required because his hearing was normal through the speech range. The audiologist ultimately concluded that the Veteran's high frequency hearing loss was not the result of incidents of military service, as his hearing was normal in both ears at separation. In addition, he had no mention of tinnitus during service, and initially reported the tinnitus had its onset only six years before, though this was later qualified to becoming more noticeable about six years before. The examiner concluded, however, that the "tinnitus is not likely related to the incidents of military service." In his October 2008 claim for service connection, the Veteran reported that he was a warrant officer helicopter pilot in Vietnam, during which time he was exposed to jet engine noise and gunfire from the two M60 machine guns on either side. He was awarded the Air Medal with 25 Oak Leaf Clusters, indicating a large number of missions, in his case over 1200 combat hours and numerous non-combat missions. In his NOD in March 2009, he indicated that he was also exposed to combat fire when he flew into "hot" landing zones. His base was hit frequently by mortar and rocket fire, as the helicopters themselves were targets. See VA Form 9 (September 2009). During the August 2012 Board hearing the Veteran testified that his helicopter had two 30-caliber machine guns mounted on the side doors. They were issued ear plugs, which helped alleviate some noise level, but the helmet was not designed for noise suppression. He wore the ear plugs while flying, but he was also exposed to daily mortar attacks and artillery fire from the base while he was not wearing hearing protection. At separation, he had a hearing examination, which occurred in a closed room, but he believed it was not in a soundproof booth. He first noticed his hearing loss about two or three months after separation from service, the first time in which he was not in the vicinity of any helicopters. He had no quiet moments in the military. After leaving service, he first noticed he had humming in his ears, but it worsened after 2001 when he had leaking ears. His family also noticed at that time that his hearing was impaired. He was a graphic designer for thirty years following service and had little direct noise exposure after service. He went to the shooting range as a hobby, but only started about 2009, three years before the hearing. He believed his hearing has become progressively worse since service. The Veteran's brother also testified about when his family first noticed the hearing impairment. He testified that when the Veteran returned from Vietnam, he started becoming more detached and often had to repeat questions to him. A lay statement from the Veteran's wife, submitted in September 2012, also indicates that she began noticing his hearing impairment shortly after service. She was frustrated because she could not tell when he was ignoring her and when he could not hear her. Around 2001 or 2002, she began to notice that his hearing had worsened when he would not respond to her and he could no longer hear the phone ring. She believed that his inability to hear was also related to his PTSD and his periods of "distance." In connection with the Board hearing, the Veteran also submitted a March 2009 statement from a former service colleague from Vietnam, in which the individual stated that all of the soldiers who flew Huey helicopters had hearing loss due to the whine of the turbine engine and the very loud squeal that emanated from the transmission behind the pilot's head. The Army issued helmets that were designed for safety and not noise cancellation. Nearly all of the crewmembers working around Huey helicopters were unable to pass the Army's hearing tests. As a consequence, the helmet was redesigned to improve noise cancellation of the helicopter's high-pitched noise following the Veteran's service. Based on VA's findings, helicopter pilots have "highly probable" exposure to hazardous noise during military service. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). III. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service 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); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter). In order to establish service connection, the evidence must generally 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, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, under 38 C.F.R. § 3.303(b), the second and, in some cases, the third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (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) evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Section 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The United States Court of Appeals for the Federal Circuit has held that "[l]ay 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology. Hickson, 12 Vet. App. at 253. Once evidence is determined to be competent, the Board must determine whether the evidence is credible. In assessing the credibility of the evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, as well as, if applicable, the demeanor of the witness if oral testimony is given. Caluza, 7 Vet. App. at 511. The Board may also consider the effect of self-interest. Pond v. West, 12 Vet. App. 341, 345 (1999). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to a veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, the Veteran's occupation in service, a helicopter pilot, was one determined to have "highly probable" loud, high frequency noise exposure. Moreover, his detailed statements establish that he was around engine noise and gunfire on a daily basis, and though he wore ear plugs while flying, his continuous exposure to mortar and artillery fire and the constant level of noise exposure while flying a helicopter are enough to establish an in-service event or injury. In addition, the Veteran's detailed lay statements about the onset of his tinnitus are sufficient to establish that he now has ringing in his ears. He reported to the VA audiologist that he had constant, bilateral tinnitus in a humming or "steady ringing" tone. Similarly, in July 2007, his private audiologist reported that he had "long-standing bilateral tinnitus." The detailed lay statements by the Veteran at the hearing indicate that his tinnitus has worsened, particularly over the past ten years. While it started out as a "little low hum," it slowly became a "high pitched ringing noise." This lay testimony of tinnitus, a condition capable of lay observation, is enough to establish the existence of a current disability. The final element of service connection is establishing a nexus between the in-service event or injury and the current disability. The Board concludes that the Veteran has done so in the present case. While the STRs are negative for any reference to tinnitus during service, they appear to be incomplete records, as evidenced by the absence of a service entrance examination. In addition, the Veteran's hearing testimony is reconcilable with the apparent lack of complaints of tinnitus during service, as he states that he first noticed the tinnitus only when he was away from the constant sounds of helicopter noise and gunfire. The VA audiologist's January 2009 opinion is negative for a nexus between the Veteran's military service and his current condition of tinnitus. For two reasons, however, the Board finds that the audiologist's opinion is not entitled to full probative weight. First, the audiologist relied on the Veteran's statements that his tinnitus began only six years prior to his examination. She then clarified that the Veteran stated that his tinnitus only "worsened" in the past six years and he did not remember the onset date. When offering her final conclusions that the tinnitus was unrelated to military service, however, she relied on his statement that his tinnitus had begun only six years prior. Thus, her report is internally inconsistent. On the other hand, the Veteran's statement that his hearing "worsened" six years prior tends to confirm his express hearing testimony that his tinnitus and hearing loss worsened around 2001 when he had running in his ears. In addition, the audiologist may have overrelied on the Veteran's audiogram taken at separation. The separation examination notes 0 dB pure tone thresholds for all frequencies, which is actually an improvement over the Veteran's extension examination the year before. However, the Veteran testified that this examination may not have been conducted in a soundproof room, and his subjective concerns about the examination are relevant to the probative value to be accorded to it. The October 1969 separation examination also did not include an explanation as to why the Veteran's pure tone thresholds actually improved slightly since the September 1968 examination, and, if improperly performed, could have produced inconsistent values. Absent this explanation, the Board finds that the VA audiologist's conclusions basing her negative nexus opinion as to the Veteran's tinnitus loses some probative value as it is based on the suspect October 1969 examination. For these reasons, the Board finds that the Veteran's lay statements provide persuasive evidence that his tinnitus has continued since military service, even though it has changed from a dull humming to a high-frequency ringing in the past decade. The negative opinion of the VA examiner was less persuasive, both because she erroneously interpreted the Veteran's statement that his tinnitus began six years prior, and because she overly relied on a separation examination that may not have been properly performed. Accordingly, resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. Turning next to the Veteran's hearing loss, he has established the existence of an in-service event, in this case, acoustic trauma as a result of noise exposure that he experienced while working as a helicopter pilot in Vietnam. As noted above, a helicopter pilot has "highly probable" noise exposure, and his lay statements and those of his in-service colleague detail how the turbine engines and mounted machine guns produced very loud, high frequency noise. As a consequence, an in-service event has been established. The Veteran must also show that he has a current disability. To have a ratable hearing loss disability for VA compensation purposes, the Veteran must have had since the filing of his claim sufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385. According to this regulation, impaired hearing will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies are 26 dB or greater; or when speech recognition scores under the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, based on the audiograms of record, he had a hearing disability in his right ear at least since the June 2003 audiogram, and in his left ear on the July 2008 audiogram. Service connection is warranted if the current hearing loss can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). For the reasons stated below, the Board ultimately concludes that it is as likely as not that the Veteran's hearing loss was incurred in military service. The VA audiologist concluded that the Veteran's hearing loss was not incurred in military service. However, her opinion relies solely on the Veteran's separation examination, taken in October 1969, which showed pure tone thresholds of 0 dB for all frequencies, a slight improvement over his examination from the previous year and one showing completely normal hearing levels. The Veteran testified that he believed that this audiogram was not performed in a soundproof room, which could explain the inconsistency, and the audiogram does not contain an explanation of any kind. Thus, the VA audiologist's opinion which appears to rely solely on the October 1969 separation audiogram for the conclusion that his hearing loss did not originate in service is entitled to reduced probative value. In addition, the VA audiologist did not have the benefit of the assertion of the Veteran's wife in her September 2012 statement, his brother during the August 2012 hearing, and his in-service colleague in the March 2009 statement, all of whom are competent to testify as to their observations concerning the Veteran's in-service noise exposure and post-service hearing loss. The Veteran's brother stated that he noticed the Veteran's hearing loss shortly after his return from military service when he became more detached and was not responding to questions or conversation. The Veteran's wife first noticed that he had a hearing problem shortly after they were married over forty years ago, but this impairment had become worse over the previous decade. Moreover, the Veteran's in-service colleague provided information about the type of noise to which Huey helicopter pilots were exposed and the type of protection they wore, including his own hearing loss as a consequence. The Board finds these statements to be credible. Based on the foregoing, the Board ultimately concludes that the Veteran's hearing loss was as likely as not incurred in military service, based on the totality of the evidence, to include the competent, credible, and persuasive lay assertions of record. Accordingly, and with resolution of all reasonable doubt in the Veteran's favor, service connection for bilateral senorineural hearing loss is also warranted. ORDER Service connection for tinnitus is granted. Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs