Citation Nr: 1306971 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-38 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral defective hearing and tinnitus. Jurisdiction of this case now sits in the Cleveland, Ohio RO. This claim was remanded in July 2012 for further development. 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 appellant's current bilateral hearing loss is as likely as not related to active duty service. 2. The appellant's tinnitus is as likely as not related to active duty service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1154(a), 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection 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. § 1110; 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, such as sensorineural hearing loss and tinnitus, 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 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). Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2012). However, the Court has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); Kessel v. West, 13 Vet. App. 9 (1999). 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). Bilateral Hearing Loss and Tinnitus The appellant asserts that service connection for bilateral hearing loss and tinnitus is due to service incurrence. He states that he saw combat in France, Belgium, and Germany during World War II. He indicated that he was exposed to small arms fire, automatic weapons, mortars, artillery, and gunfire. He adds that he has had bilateral hearing loss and ringing in the ears (tinnitus) since service to the present. At the outset, it is important to note that the appellant's service personnel and service treatment records are unavailable. In response to the request for his service records in July 2012, the National Personnel Records Center (NPRC) indicated that these records were "fire related," meaning that they were most likely destroyed in a fire that occurred at the NPRC in St. Louis, Missouri, in July 1973. Copies of all available original service documents have been associated with the claims folder. The Board notes when service records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet.App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet.App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). Thus, because the appellant's service records are not available, except for his separation examination, VA has a heightened duty to assist in the present case. Service treatment records show the appellant's hearing was noted to be normal based on the whispered voice test (15/15) on separation examination in February 1946. The evidence of record also shows that the appellant served in the US Army and that he was a radio operator. His separation papers also showed that he participated in Battles and Campaigns in Rhineland, Ardennes, and Central Europe. He qualified on a 30 caliber rifle and was a machine gun expert. In December 2007, a medical statement was received by VA from Gibson's Hearing Technologies. The private examiner stated that it was his opinion that the appellant's bilateral hearing loss and tinnitus were at least as likely as not due to unprotected noise exposure due to his military service. He noted that the appellant saw action in France, Belgium, and Germany while in service. He stated that he associated the appellant's audiogram with his medical opinion, however, it was not associated with the claims folder. Associated with the claims folder were copies of a number of letters the appellant wrote to his grandmother while in the Army. These letters were letters from stateside and when he was stationed overseas. Although none of the letters related to any hearing loss or tinnitus, some letters did indicate that he had been training on rifles and machine guns and that he had qualified as a sharpshooter on the rifle. Pictures of the appellant in the service as a radio operator and near an airplane were also associated with the claims folder. In November 2008, the appellant underwent a VA audiology examination. The record showed the appellant was exposed to noise of guns, trucks, and telegraph. It was noted that he was a radio operator during World War II. It was also noted that he had occupational noise exposure working in the Toledo Scale Factory. It was indicated that he was exposed to air guns without ear protection. He denied recreational noise exposure. It was further stated that there was no history of tinnitus. Pure tone threshold audiometry examination showed: HERTZ 500 1000 2000 3000 4000 RIGHT 650 655 60 60 65 LEFT 60 65 60 60 55 Speech recognition scores were 80 percent in the right ear and 76 percent in the left ear. The diagnosis was sensorineural hearing loss, bilaterally. The examiner opined that it was less likely as not that the appellant's hearing loss was caused or the result of military noise exposure. He stated that the appellant had a history of both military and occupational noise exposure. He cited to a study entitled "Noise and Military Service Implications for Hearing Loss and Tinnitus." The examiner did not indicate the findings of the study or how the study related to the appellant's diagnosis. He also made no diagnosis related to tinnitus. The appellant specifically indicated in January 2009 in his notice of disagreement (NOD) and again in his substantive appeal (VA 9) in October 2009, that he worked for Toledo Scale, but that he was not exposed to noise in the factory or on the production floor. He related that he worked in the parts department away from the production operation. In May 2012, the appellant submitted an article on noise induced hearing loss. There was no explanation on the appellant's part as to how this related to his specific hearing loss. An addendum to the November 2008 VA audiology examination report was associated with the claims file in July 2012. This addendum related that the appellant's service treatment records and claims folder were reviewed. The pertinent evidence, according to the examiner, was bilateral normal hearing to gross hearing tests without evidence of tinnitus, without evidence of any "light duty" or other activity secondary to heavy noise exposure levels, February 1946. His medical opinion was that bilateral hearing loss and tinnitus were not caused by or the result of military service from 1943 to 1946. The rationale for the examiner's findings was that the appellant's hearing was bilaterally within normal limits using gross measures during and/or shortly following active military service, without service treatment evidence of any acoustic trauma, without evidence of any constant pathologic tinnitus, and without a military service period nexus for impaired hearing and/or tinnitus. Tinnitus was denied by the appellant in December 2008. The December 2007 private examiner's report was completed without a copy of the audiometric examination, completed by a hearing instrument specialist (HIS) without medical training, without formal medical education, and completed without a review of the appellant's military record. There was no evidence of hearing damage secondary to acoustic trauma in the appellant's letters home. From 1950 through 2000, for 50 years, there were no claims for hearing loss disability, bilaterally. The current hearing loss (12/1/2008) was described as flat, which the examiner stated was not consistent with noise-induced pathology. According to the examiner, this was likely presbycusis bilaterally, secondary to advanced age. The examiner also indicated that there was a long history of occupational noise history. 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, 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385. The Board points out, however, 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). As to the appellant's hearing loss claim, the Boards finds sufficient evidence of hearing loss for VA purposes. Such was clearly established on examination. There is also evidence of noise exposure in service. The Veteran's DD 214, shows service as a radio operator and he has reported that he served in combat in World War II. His DD-214 indicates that he served in 3 battles and campaigns and without his personnel records, the Board will accept his statements and his DD 214 listing of battles and campaigns as indicating that he served in combat. 38 U.S.C.A. §§ 1154(a)(b) (West 2002). It is true that hearing loss was not demonstrated in service. The appellant does not necessarily argue the contrary. However, as indicated, the fact remains that he did have significant noise exposure in service (artillery, mortar, machine gun fire, rifle and smalls arms fire), which amounts to an in-service injury/event. Shedden elements (1) and (2) are thereby met. As for crucial element (3) of the Shedden analysis, a medical nexus, there are conflicting opinions. Neither are strong opinions. The positive evidence (the private December 2007 medical statement) included that the appellant served in the armor division and that his hearing loss and tinnitus were due to his unprotected noise exposure in service. The examiner based this in part on the appellant's combat action in France, Belgium, and Germany. He did not have any substantiation of this other than the appellant's reported history of such. Conversely, while the November 2008 VA examination and July 2012 addendum report opined that the appellant's hearing loss was not related to service and gave the rationale that it was because his hearing was normal at separation, he had a history of both military and occupational noise exposure, there was no evidence in his letters home of hearing damage, and for 50 years, he had made no disability claim for hearing loss. The appellant is clearly competent to state that he experienced hearing loss in service, and that he continues to experience the residuals thereof. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). While it is true that the appellant did not seek disability benefits for hearing loss for more than 50 years after service, the Board finds no reason to question his credibility. It is also crucial to note that the Court has long-held that although a hearing loss disability is not established at separation from service, it may be established later 'by submitting evidence that the current disability is causally related to service'. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Given the foregoing, the November 2008 VA examination report with July 2012 addendum and opinion is given no more probative value than the December 2007 private physician's opinion. Thus, despite the lack of medical evidence of hearing loss at separation from service, based on the Veteran's present hearing loss, his clear exposure to noise in service as a radio operator and in combat, and his statements as to the occurrence of his hearing loss, and resolving all doubt in his favor, the Board finds that a grant of bilateral hearing loss is warranted. As to the Veteran's claim for tinnitus, the Board also finds sufficient evidence of tinnitus related to service. 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 the veteran competent to testify to symptomatology capable of lay observation); See Layno at 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The VA examiner based his conclusion that the Veteran's tinnitus was not caused by military service on the fact that there was no documentation of tinnitus in service and no history of tinnitus reported. However, as noted above, 38 U.S.C.A. § 1154(b) provides a presumption for combat veterans with regard to injuries they experienced during combat. In this case, the Veteran stated in part, that he has had tinnitus since he served in combat in France, Belgium, and Germany. Although there are no service personnel records to show specifically that this is the case, his DD 214 does show that he participated in battles and campaigns during World War II. This is consistent with the circumstances and conditions of combat, especially for an appellant who served in the field as a radio operator and in combat. Ringing in the ears (tinnitus) is a symptom that a lay person such as the appellant is competent to report; and the Board has found no reason to doubt the appellant's credibility with regard to his report that he experienced tinnitus in his ears while in service. Although the examiner reported that he had no history of tinnitus, the appellant has alleged differently. The appellant has asserted that his tinnitus began in service and it has continued since that time. This assertion is considered to be credible, and is sufficient to form the basis for service connection. As such, service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for bilateral tinnitus is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs