Citation Nr: 1303365 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-02 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1965 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 and a January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In pertinent part of the April 2008 rating decision, the RO denied the claim for service connection for bilateral hearing loss, and in the January 2009 rating decision, the RO denied the claim for service connection for tinnitus. In May 2009, the Veteran testified before a member of the Board during a hearing at the RO. During the hearing, the Veteran provided testimony on his claim for service connection for bilateral hearing loss. He also provided testimony on his tinnitus claim even though it had not been perfected for appeal at that time as he had not yet been provided with a statement of the case (SOC). A copy of the hearing transcript has been associated with the claims folder. In March 2010, the Board remanded the bilateral hearing loss and tinnitus claims to the RO (via the Appeals Management Center (AMC)). The Board directed that the Veteran's outstanding records of pertinent treatment and records associated with the Veteran's claim for disability benefits from the Social Security Administration (SSA) be obtained and associated with the claims folder. The Board also instructed that the Veteran be issued a SOC for his tinnitus claim. The Veteran perfected his tinnitus claim and requested another hearing before the Board. In February 2012, the Veteran testified during a Travel Board hearing at the RO. A copy of the hearing transcript has been associated with the claims folder. During the February 2011 prehearing, the Veteran was advised that, because he had previously testified at a Travel Board hearing before a different Veterans Law Judge in May 2009 regarding the issues entitlement to service connection for bilateral hearing loss and tinnitus, review of those issues would be assigned to a panel of three Veterans Law Judges and both judges who conducted hearings on that issue would participate in making the decision on the claim, in accordance with 38 C.F.R. § 20.707 (2012). He was offered the opportunity to appear at a Board hearing before the third panel member, but declined and asked that the panel proceed immediately with consideration of his appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Viewed in the light most favorable to the Veteran, the evidence of record is at least in equipoise as to whether his current bilateral hearing loss impairment disability is related to his in-service noise exposure. 2. Viewed in the light most favorable to the Veteran, the evidence of record is at least in equipoise as to whether his tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving any doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving any doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) was enacted in November 2000. It dealt with VA's duties to notify and assist a veteran with regard to his or her claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, in view of the Board's favorable decision below, further discussion regarding any lapses in duties to assist and notify, or regarding whether the Veteran was prejudiced by any such lapses would serve no useful purpose. 2. Service Connection The Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, he attributes his claimed hearing loss and tinnitus to injury caused and/or aggravated by acoustic trauma during his periods of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). 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). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition to the rules outlined above regarding service connection in general, there are additional considerations for addressing claims of entitlement to service connection for hearing loss. Essentially, a certain threshold level of hearing impairment must be shown for the hearing loss to be considered a hearing loss disability under the laws administered by the VA. 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 at 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater. 38 C.F.R. § 3.385. Service department audiometric readings prior to October 31, 1967 are assumed to be in American Standards Association (ASA) units, which must be converted to International Standard Organization (ISO) units in order to evaluate for hearing loss under 38 C.F.R. § 3.385. Since the Veteran's service medical records pertain to dates prior to October 31, 1967, conversion is required for the analysis here. With audiological examinations, the threshold for normal hearing is from zero to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet App. 155 (1993). It is noted, however, that unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss. Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 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. Hensley, 5 Vet App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while 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 which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran asserts that during his first period of service, he worked on close proximity to the flight lines around aircraft and jet engines. He reports that he first noticed a decline in his hearing during his period of service. He also reports that he first noticed occasional ringing in his ears during his period of service, and it has become progressively worse since then. A fellow serviceman has provided lay evidence that the Veteran had difficulty hearing others and he complained of ringing in his ears when they served together. See May 2009 correspondence. The Veteran denies any post-service noise exposure. At the outset, the Board concedes that the Veteran likely suffered from acoustic trauma during his period of service when he worked in close proximity to large aircraft and jet engines. See VBA Fast Letter 10-35 (September 2, 2010) (VA will concede exposure to hazardous noise where a veteran's duty position is shown to have a "Highly Probable" or "Moderate" probability of such exposure). Here, the Veteran's DD 214s from his first period of service shows that his military occupational specialty (MOS) was as an aircraft radio repairman and operator. Based on the Veteran's MOS, his exposure to extreme noise in service is probable. In addition, the Veteran testified during the May 2009 and February 2012 Board hearings that he was within close proximity to flight lines and worked near running aircraft and jet engines. Given the Veteran's MOS, and his credible statements about his duties while in service, the Board finds that the Veteran was likely exposed to extreme noise in service. In addition, a review of the claims folder demonstrates that the Veteran has current hearing loss disability as defined by 38 C.F.R. § 3.385 in both ears. See the report of a March 2008 VA examination report. The remaining question on appeal is whether the evidence of record is at least in equipoise that the Veteran's current bilateral hearing loss disability is related to his in-service noise exposure. Based on a review of the lay and medical evidence of record, the Board finds that the evidence is in approximate balance on that question. The Board first notes that the Veteran's service treatment records clearly reflect a decrease in his hearing acuity, bilaterally, during his period of service. The Veteran's enlistment examination contains objective findings reported in ASA units. After converting the reported pure tone thresholds to ISO units, the pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 5, 0, 5, N/A, and 0 decibels in the right ear, and 5, 0, 5, N/A, and -5 decibels in the left ear. In January 1969, the Veteran underwent his examination prior to separation from service. The examination report contained objective findings reported in ISO units, and the pure tone thresholds at 500, 1,000, 2,000, 3,000 and 4,000 Hertz were as follows: 20, 10, 15, 15, and 15 decibels in the right ear, and 20, 15, 10, 10, and 15 decibels in the left ear. These audiogram results reflect an indication of clinical hearing loss in both ears with 20 decibels at 500 Hertz, bilaterally, and demonstrated a significant decline in the Veteran's bilateral hearing acuity as a result of his service; albeit the 1969 report does not show hearing loss disability in either ear. 38 C.F.R. § 3.385; see Hensley, 5 Vet App. at 155. The Board has considered that it does not appear that the Veteran sought any treatment for his hearing impairment until decades after his separation from service. Moreover, the first evidence of bilateral hearing loss disability is not shown until March 2007, which comes almost four decades after the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. This large evidentiary gap between the Veteran's discharge from service and the first complaints of hearing loss, or medical evidence of hearing loss, in 2007 weighs against the awards of service connection on a direct basis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). While the Board notes that there is little evidence of chronicity of treatment since service (as the first post-service evidence of record of any hearing loss disability until 2007), the Veteran has reported symptoms of decreased bilateral hearing acuity since service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding a lay person is competent to testify to a lack of symptoms of difficulty breathing prior to service, continuous symptoms of breathing difficulty after service, and that he was given medication). Notably, the finding of a hearing loss disability pursuant to 38 C.F.R. § 3.385 requires audiometric testing, which goes beyond the observations of a lay person. Regardless, the Veteran's competent and credible testimony that he has experienced some degree of hearing loss since service is evidence that tends to relate the current bilateral hearing loss to his period of service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, the results from the 1969 audiogram suggest that the Veteran suffered from significant decreased hearing acuity well before 2007. In addition, the record contains a positive nexus opinion from the Veteran's treating VA audiologist in a March 2007 VA treatment record. In that treatment note, the VA audiologist noted that the Veteran's reported history of in-service noise exposure and symptoms of decreased hearing acuity and tinnitus since his period of service. Then, the VA audiologist provided a medical opinion on the causal relationship between the Veteran's current hearing loss disability and his in-service noise exposure. It appears that this medical opinion was primarily based on Veteran's reported history of noise exposure and onset of his symptomatology. It is unclear whether the VA audiologist reviewed the claims folder. Failure to review the claims folder does not, by itself, automatically render a medical opinion inadequate. See Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008); see also Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). The Board has also considered the March 2008 VA examiner's medical opinion that the Veteran's bilateral hearing loss was not related to his periods of service. Although his opinion is a medical conclusion that the Board cannot ignore or disregard, the Board is not obligated to accept any examiner's opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Rather, the Board's duty is to assess the probative value of the medical evidence. Id. Here, the March 2008 VA examiner based his opinion, in part, on the review of the Veteran's January 1969 discharge examination report. The VA examiner found that the record showed bilateral hearing loss "within normal limits." The VA examiner indicated that any deterioration in hearing acuity after separation was not related to in-service noise exposure. See March 2008 VA audiological examination. The Board notes that the VA examiner's conclusion appears to be based on an incorrect reading by the examiner of audiological findings recorded on the January 1969 separation examination report. The audiometric results from the 1969 examination do show that the Veteran had bilateral hearing loss, though not so severe an impairment as to rise to the level of a disability as defined by VA at 38 C.F.R. § 3.385. Moreover, the March 2008 VA examiner failed to consider the obvious decline in the Veteran's hearing acuity and the VA examiner's statement characterizing the findings of the 1969 examination as "within normal limits" is not entirely accurate. As such, the Board finds that the VA examiner's medical opinion carries less probative value as it is based off an inaccurate review of the medical findings at the time of the Veteran's separation. Given the Veteran's competent credible testimony of decreased hearing acuity since service, and the VA audiologist's positive nexus opinion, the Board finds that when viewed in the light most favorable to the Veteran, the evidence of record is at least in equipoise on whether the Veteran's bilateral hearing loss is related to his period of service. Resolving any doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board next addresses the Veteran's tinnitus claim. The Veteran has been diagnosed with constant tinnitus. See the report of the March 2008 VA audiological examination. As discussed above, VA has conceded in-service noise exposure. The remaining question is whether the evidence of record is at least in equipoise on the issue of whether the Veteran's tinnitus is related to his periods of service. The Board first observes that by its nature tinnitus is a ringing in the ears that can be detected by the Veteran. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (providing that ringing in the ears is capable of lay observation). The United States Court of Appeals for Veterans Claims (CAVC or Court) has held that, where there is of record lay evidence of in-service tinnitus and of tinnitus ever since service and medical evidence of a current diagnosis, such evidence suffices to indicate that disability may be associated with active service. As such, the Veteran's statements and testimony as to when the ringing in the ears began is important and credible evidence going toward the matter of when the condition began. The Veteran maintains that his tinnitus is a result of excessive noise exposure while he worked near flight lines and aircraft engines during his first period of service. The Board acknowledges the March 2008 VA examiner's opinion that the Veteran's tinnitus is not likely related to service, because it was not documented during his periods of active duty. In this regard, the Board notes that after a full review of the record, it found that the first report of tinnitus is not shown until 2007. Prior to and since 2007, the Veteran has credibly stated that he first experienced tinnitus since service. The Veteran has consistently maintained that he has experienced symptoms of tinnitus since service. Given the nature of tinnitus, the Veteran is the only one who is competent to state when he began to perceive tinnitus. The Veteran has credibly stated that his tinnitus began in service and that it has continued thereafter. Here, given the findings of established noise exposure in service and the Veteran's own competent lay testimony of chronic symptoms of tinnitus in service and thereafter, the Board concludes that the Veteran's description of his tinnitus is sufficient to outweigh the VA examiners' findings that tinnitus was not incurred during service. When 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 the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Consequently, resolving any doubt in the Veteran's favor, the Board finds that the Veteran's bilateral hearing loss and tinnitus is likely related to service. Hence, service connection for these disabilities is warranted. See 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. __________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals __________________________ A. C. MACKENZIE Acting Veterans Law Judge Board of Veterans' Appeals __________________________ K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs