Citation Nr: 1306998 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 12-10 055 ) 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: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an August 2012 decision, the Board remanded these issues for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. 2. The Veteran has a current tinnitus disability that is consistent with his in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 11315103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claims for service connection for bilateral hearing loss and tinnitus; the Board finds that all notification and development actions needed to fairly adjudicate these claims has been accomplished as to these issues. Service Connection Laws and Regulations Generally Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see 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); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for chronic diseases is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. If sensorineural hearing loss becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hearing loss during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). 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, 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 Tests are less than 94 percent. 38 C.F.R. § 3.385. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis As the claims for service connection for bilateral hearing loss and tinnitus have identical backgrounds and analysis, these issues will be addressed together. The Veteran maintains that he incurred hearing loss and tinnitus as a result of his noise exposure while in the service as he was on the flight line as a member of the Patrol Squadron Sixteen Aviation in the Navy. Service treatment records confirm this service and demonstrate noise exposure but are silent as to complaints, findings, or diagnosis pertaining to hearing loss or tinnitus. His June 1952 entrance examination and June 1956 separation examination did not contain audiometric readings. Both of these examinations revealed normal whispered voice tests. A May 2002 VA audiology note indicated that the Veteran had positive noise exposure and tinnitus which he had noticed for several years but had worsened recently. His right ear had severe to moderately-severe sensorineural hearing loss and his left ear had moderate high frequency hearing loss above 2000 Hz. An August 2004 treatment report from the Mountain Ear, Nose and Throat Associates noted that the Veteran returned for a follow-up of severe sensorineural hearing loss of the right ear with symptoms of allergic rhinitis and mild Eustachian tube dysfunction and vertigo. It was noted that the Veteran had a long history of significant acoustic trauma as an airman onboard a ship where he refueled airplanes without significant hearing protection. This resulted in profound sensorineural hearing loss bilaterally. The Veteran underwent a VA examination in August 2010. The examiner noted that at enlistment and separation, there were only normal whispered voice tests. She indicated that whispered voice tests were insensitive to high frequency hearing loss and were not considered suitable for rating purposes. An August 2002 VA audiology note reported that the Veteran had been complaining of intermittent tinnitus in his right ear for several years and dizziness for 15 years. He also complained of a difference in hearing between his ears for 15 years (right worse than left). The audio was not shown but the report noted a severe to moderately severe sensorineural hearing loss in the right ear and a moderate sensorineural hearing loss in the left ear. The Veteran presented with complaints of a constant bilateral tinnitus since some time in the 1960's. He reported first seeing doctors in the 1960's for the ringing in his ears. He also reported bilateral hearing loss that he noticed in the early 1970's. During service, he was on a flight crew and worked on airplanes without hearing protection. He sometimes had to refuel right next to aircraft engines that were running at full power. He denied occupational noise exposure and denied recreational noise exposure. Audiometric testing in August 2010 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 75 55 65 90 LEFT 55 60 60 65 70 Speech audiometry revealed speech recognition ability of 42 percent in the right ear and of 34 percent in the left ear. The examiner opined that she could not resolve the issue of whether the Veteran's bilateral hearing loss and tinnitus were due to his in-service noise exposure without resorting to mere speculation. She noted that the status of the Veteran's hearing at his separation was unknown. He reported the onset of hearing loss and tinnitus sometime in the 1960's which were accompanied by dizziness. The examiner noted that noise exposure did not typically cause dizziness. According to his VA records, his hearing in 2002 was much better in the left ear than it is now while the right ear was of the flat configuration that it is now. Since 2005, the hearing loss in both ears has been of an essentially flat, or rising configuration, which was not typical of hearing loss due to noise exposure. Flat or rising audiograms along with tinnitus and dizziness may be associated with inner ear disorders such as Menier's disease which was not typically caused by noise exposure. However, since an audio consult note in 2002 showed only a high frequency sensorineural hearing loss in the left ear and the status of the hearing during service was unknown, the examiner could not determine whether any part of the hearing loss or the tinnitus began as a result of military noise exposure. Per the August 2012 Board remand instructions, the examiner who conducted the August 2010 VA examination was requested to provide a clarifying opinion on whether the Veteran's current bilateral hearing loss and tinnitus was due to his in-service noise exposure. In a November 2012 report, the VA examiner noted that her opinion remained unchanged from her previous opinion in August 2012 as she could not determine without resorting to mere speculation whether any portion of the Veteran's current hearing loss or tinnitus began as a result of service. She noted that this case met the criteria for stating that an opinion could not be provided without resorting to mere speculation. She noted that required information was missing as there was no objective evidence that hearing loss or tinnitus occurred during military service as no audiograms were performed during service. She noted that a 2006 Institute of Medicine Report titled "Noise and Tinnitus" indicated that if the documentation of the existence of hearing loss or tinnitus at discharge from the military is missing, it was nearly impossible to determine whether hearing loss or tinnitus later in life was the result of noise exposure during prior military service or whether the Veteran's hearing loss was acquired during military service. The examiner noted the Veteran's reported onset of hearing loss in the 1970's which would be approximately 15 to 20 years after separation from service, as well as the onset of his tinnitus in the 1960's. Although the date of the reported tinnitus onset was closer to separation, a lay statement did not provide objective evidence of a continuity of the condition since service. The current medical knowledge yielded multiple possible etiologies with none more likely than not the cause of the claimed disability. The Veteran stated that he first saw doctors in the 1960's because of tinnitus accompanied by fullness in his ears as well as dizziness. His hearing loss as shown on the August 2010 VA examination was primarily flat in configuration and not typical of hearing loss due to noise exposure. Inner ear disorders such as Meniere's disease often caused tinnitus, ear fullness, dizziness and hearing loss with a flat or rising configuration. The earliest audiogram shown in VA records was done in January 2005 and also showed an essentially flat hearing loss configuration. Noise exposure typically caused a sloping, high frequency sensorineural hearing loss. Also in the VA records was a description of a 2002 audiogram stating that there was high frequency sensorineural hearing loss in the left ear. However, this audiogram was completed approximately 50 years after service and the complete audiogram is not shown. The examiner concluded that multiple possible etiologies include an inner ear disorder or pathology, the aging process and military noise exposure. She could not determine without resorting to mere speculation whether any or all of these etiologies contributed to the hearing loss and tinnitus. The August 2012 audiological findings clearly support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385 (2012). Additionally, the August 2012 VA examination report reflects a current diagnosis of tinnitus. Therefore, the question to be decided in the present appeal is whether such bilateral hearing loss and tinnitus are associated with the Veteran's active duty. In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss or tinnitus. However, when considering the circumstances of the Veteran's service where he worked on airplanes on a flight line, he was undoubtedly exposed to some, and likely significant, noise exposure in service. Thus, his assertions of in-service noise exposure appear to be credible, and consistent with the circumstances of service. The Veteran is also competent to report in-service exposure to noise. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet App 370 (2002). Indeed he has reported noise exposure during his service. For all of these reasons, such exposure is presumed. 38 U.S.C.A. § 1154(a) (b) (West 2002). After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for bilateral hearing loss and tinnitus is warranted. In support of this conclusion, the Board notes that the August 2004 private treatment report from the Mountain Ear, Nose and Throat Associates noted that the Veteran had a long history of significant acoustic trauma as an airman onboard a ship where he refueled airplanes without significant hearing protection which resulted in profound sensorineural hearing loss bilaterally. Moreover, the Board finds that the opinions provided by the VA examiner in August 2012 and her November 2012 addendum do not preclude service connection for these disabilities. The VA examiner indicated that a determination regarding the relationship between hearing loss and tinnitus and the military noise exposure could not be determined without resorting to mere speculation. She specifically noted that were multiple possible etiologies for the Veteran's hearing loss and tinnitus, including an inner ear disorder or pathology, the aging process and military noise exposure. However, while the current medical knowledge yielded multiple possible etiologies, none were more likely than not the cause of the claimed disabilities. Moreover, the Board notes that there is no contrary medical evidence of record that indicates that the Veteran's bilateral hearing loss and tinnitus disabilities were not incurred in service. Accordingly, the benefit-of-the-doubt rule applies, and service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs