Citation Nr: 1306395	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  12-33 501	)	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

Donna D. Ebaugh, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1951 to March 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the RO in St. Louis, Missouri.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The competent, credible, and probative evidence of record is in approximate balance as to whether the Veteran's bilateral hearing loss is related to his military service.

2.  The competent, credible, and probative evidence of record is in approximate balance as to whether the Veteran's tinnitus is related to his military service.


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012).

2.  Tinnitus was incurred in active duty service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this case, the Veteran claims entitlement to service connection for bilateral hearing loss and tinnitus due to noise exposure incurred in service, while serving on the flight deck of a ship during the Korean War.  For the reasons explained below, the Board concurs.

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012).  In this case, the benefit sought on appeal is granted in full.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.

Relevant Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002).  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.  See 38 C.F.R. § 3.303(b) (2012).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).  In order to establish service connection for the claimed disorder, 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) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  See 38 C.F.R. § 3.303(d) (2012).  Furthermore, sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  See 38 C.F.R. §§ 3.307, 3.309 (2012).

With hearing loss claims, VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 are less than 94 percent.  See 38 C.F.R. § 3.385 (2012).

Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2) (2012).  In this regard, the Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Factual Background

The Veteran reported that he was exposed to noise while serving on the flight deck of a ship in service.  He reported that initially, his military occupational specialty involved moving airplanes to stage them for takeoff.  See July 2012 private audiology report.  He also described an incident in which a plane's tail hook engaged an arresting wire, pulling the plane over the side of the ship.  He reported that the event created a very shrill, high pitched noise that bothered his ears.  See September 2011 notice of disagreement.  He also reported that the incident caused him physical pain in his ears.  See July 2012 audiology report.  He reported that his ears felt normal a few days later.  See September 2011 notice of disagreement.  He asserted that he reported the incident to his supervisor and requested a transfer to another military occupational specialty.  He was granted a transfer to Aerographer School and became a weather observer.  Id.  Indeed, his DD-214 confirms his service as a weather observer.  He reported that even as a weather observer, he was always close to piston engine aircrafts.  See July 2012 audiology report.  He reported that his (weather observer) office was located next to the flight line.  See September 2011 notice of disagreement.  He reported that consequently, he was frequently exposed to high pitched engine noise throughout the work area.  Id.  He also reported that he was occasionally exposed to combat noises.  See July 2012 private audiology report.  He reported that hearing protection was not provided in service.  Id.

Service treatment records are silent as to any complaints of hearing loss or ringing in the ears.  The March 1955 service separation examination noted normal hearing based on a voice whisper test. 

Following service, the Veteran went to school and became a systems engineer.  He reported that he worked in a factory for six months without hearing protection.  Then, he began a 28 year career at another organization.  He denied any civilian occupational or recreational noise exposure.  See July 2012 private audiology report. 

The Veteran reported in his September 2011 notice of disagreement as well as at the April 2011 VA examination that his hearing problems began to surface a few years after he was discharged from service.  He reported that at the time, he did not associate his loss of hearing, vertigo, or tinnitus to his service work environment and that he is not qualified to determine whether his hearing and tinnitus problems were related to his service work environment.  He reported that he was not aware that he could file a claim for these issues until the time in which he submitted the present claims.  See September 2011 notice of disagreement.  He reported that otherwise, he would have submitted his claims much sooner.  Id. 

Private treatment records reflect that the Veteran underwent surgery on the right ear in 1968 and the left ear in 1974.  Both surgeries were stapedectomies, which the April 2011 VA examiner explained as surgery on the middle ear to remove the stapes bone in each ear and replaced with prosthetic devices.  The examiner noted that the middle ear condition was unrelated to noise exposure.  The Veteran has not claimed that the surgeries were due to his noise exposure.  

A December 1968 private treatment record associated with the right ear stapedectomy indicates that the Veteran noticed in March 1968 that his hearing was decreasing.  He also reported that he had experienced tinnitus and dizziness for the past three years, from "time to time."    

Private audiograms dated in August 2003 and March 2010 have been associated with the file.  Although both audiograms are uninterpreted, the August 2003 audiogram contains a legend for interpretataion.  Using the legend provided by the August 2003 audiologist, the August 2003 audiogram is consistent with the findings in the April 2011 VA examination report noted below.  In August 2003, the Veteran had pure tone thresholds, in decibels, as follows: 







HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
55
70
75
LEFT
25
35
45
70
75

While the Board is unable to interpret the March 2010 audiogram for lack of a legend, the Board notes the diagnoses of moderate sloping to severe mixed hearing loss in the right ear and mild sloping to profound hearing loss in the left ear.  

Additionally, the Veteran underwent a VA examination in April 2011.  At that time, his measured pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
70
65
75
LEFT
30
45
55
70
75

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear.  

Additionally, at the April 2011 VA examination, the Veteran reported constant ringing in his ears.  As discussed below, the April 2011 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to service. 

In July 2012, the Veteran underwent a private audiology examination.  The private audiologist reviewed the Veteran's history, administered an examination, and reviewed his service discharge documents, service treatment records, private treatment records dated in August 2003 and March 2010, as well as diagnoses rendered by the April 2011 VA examiner.  At the conclusion of the examination and review of documentation, the examiner determined that it is more likely than not  that the Veteran's hearing loss and tinnitus are related to his military noise exposure and that it may have worsened as a civilian. 

Analysis

With respect to Shedden element (1), current diagnosis, the Board finds that the element is met with respect to both claims.  Regarding hearing loss, the findings of the April 2011 VA examination report and the private audiograms indicate that the Veteran has current hearing loss for VA purposes.  See 38 C.F.R. § 3.385 (2012); see also Shedden, supra.  Regarding tinnitus, the Veteran has offered competent and credible reports of current ringing in his ears.  

Regarding Shedden element (2), in-service disease or injury, this element has been met with respect to both claims.  The Board finds that the Veteran is both competent and credible to report on the fact that he was exposed to loud noises during service and that he suffered from decreased hearing acuity.  See Davidson, supra; Buchanan, supra; Jandreau, supra.  Therefore, the Board concedes that the Veteran was exposed to loud noise during service.  Thus, Shedden element (2), in-service disease or injury, has been satisfied.  See Shedden, supra.

With respect to crucial Shedden element (3), nexus, the medical evidence of record is at least in equipoise with respect to both claims.  Weighing in favor of the claims, is a July 2012 private audiological opinion which states that it is more likely than not that the Veteran's current hearing loss and tinnitus are related to his military service.  The audiologist reasoned that noise exposure without hearing protection can cause or contribute to hearing loss and tinnitus in individuals.  The audiologist addressed the Veteran's normal whisper voice test upon separation from service and noted 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 audiologist also considered the Veteran's reports of noise exposure in service as well as his civilian work history post-service, including a six-month period of post-service work in a factory.  The audiologist also reviewed the Veteran's service treatment records, discharge documents, private treatment records, and discussed the April 2011 VA examiner's diagnoses of hearing loss in both ears.  

Moreover, with respect to tinnitus, the private audiologist stated that the Veteran's tinnitus is as likely as not attributed to the same cause as his hearing loss, i.e., in-service exposure to noise.  The private audiologist cited a medical treatise and noted that medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of any coexisting hearing loss.  

Weighing against the claims is an April 2011 VA examination report.  The April 2011 VA examiner opined that the Veteran's hearing loss and tinnitus were less likely than not related to service.  Regarding hearing loss, the examiner based her opinion on the fact that the onset of hearing loss was several years after service discharge and that the Veteran underwent surgical correction of a middle ear condition unrelated to noise exposure.  Regarding tinnitus, the examiner explained that her opinion was based on the fact that the Veteran reported that his tinnitus began several years after military discharge.  

Significantly, the examiner did not indicate that the Veteran's hearing loss was related to the middle ear condition.  She did not explain why the occurrence of the middle ear surgeries provided rationale for the opinion that the Veteran's current hearing loss and tinnitus are less likely than not related to service.  Moreover, the examiner did not identify the etiology of the Veteran's hearing loss or tinnitus whatsoever.  
 
The Board acknowledges that the July 2012 private audiologist did not discuss the Veteran's middle ear surgery.  However, the Board finds that the private audiologist's failure to discuss the surgery is not a fatal flaw.  Given that there is no opinion of record relating the Veteran's current hearing loss or tinnitus to the middle ear surgery, or any other indication that the middle ear surgery would have caused the current hearing loss and tinnitus, the Board finds that there is no reason to reject the July 2012 opinion merely because the surgeries were not discussed.  

Additionally, the Board acknowledges that both the April 2011 VA examiner's and July 2012 audiologist's opinions are based, in part, on the history provided to them by the Veteran.  With respect to tinnitus, the Board acknowledges that the Veteran has reported seemingly different dates of onset.  Specifically, he reported to the private audiologist that he experienced ringing in his ears in service while he reported to the VA examiner that he noticed ringing in his ears a few years following service discharge.  He also indicated in his September 2011 notice of disagreement that he noticed ringing in his ears a few years following service discharge.  At first blush, these statements appear to be contradictory, however, considering the Veteran's additional statement in his notice of disagreement regarding the incident in service that "bothered his ears" such that they did not feel normal again for several days, the Board finds it plausible that he could have experienced ringing in his ears at that time.  Further, in the private treatment record dated in December 1968, he reported that he noticed tinnitus from "time to time."  He has not reported that he had constant tinnitus since service.  Thus, if he experienced tinnitus from "time to time," the Board finds it plausible that he could have experienced ringing in his ears in service and then not noticed it again until a few years after service.  He has not reported any facts that are in direct contradiction to other statements of record.  Moreover, the Board finds the Veteran's reports of medical history to be even more credible in light of the fact that he submitted evidence that could be construed against his claims, namely the middle ear surgeries.  

Most notably, the July 2012 private audiologist, a doctor of audiology, did not specify that her positive nexus opinion was based on constant tinnitus symptomatology since service.  Thus, if the private audiologist could relate the Veteran's current tinnitus to service without finding that he has constantly had tinnitus since service, the Board finds no reason to reject the July 2012 opinion based on a seemingly inconsistent onset date for tinnitus.  Indeed, the Veteran has offered competent and credible statements that he experienced symptoms in his ears in service, following loud noise, and that his ears were "bothered" for several days before they felt normal again.  See September 2011 notice of disagreement.  

Therefore, granting the Veteran the benefit of any reasonable doubt in this matter, the Board concludes that the evidence is at least in equipoise.  As such, service connection for bilateral hearing loss and tinnitus is warranted because the record contains medical evidence of current disabilities, evidence of the in-service incurrence of an injury, and a nexus between the in-service injury and the current disabilities.  See 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); Shedden, supra.


ORDER

Service connection for bilateral hearing loss is granted. 

Service connection for tinnitus is granted.



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs