Citation Nr: 1309002	
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  10-12 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel
INTRODUCTION

The veteran served on active duty from September 1957 to August 1959.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.  Thereafter, the Veteran's claims file was transferred to the RO in Detroit, Michigan.

In April 2011, the Veteran testified at a hearing before the Board.  A transcript of the hearing is in the claims file.  Following the hearing, the record was held open for 60 days so the Veteran could submit additional evidence.  Additional evidence was received in May 2011 with a waiver of the Veteran's right to have that evidence considered initially by the RO.


FINDINGS OF FACT

1.  The Veteran was assigned to an artillery unit on active duty that involved training on the 155mm Howitzer ("Btry B (155mm How), 1st FA Bn, 9th Arty"), and he was exposed to noise during that time.

2.  The Veteran has a current noise-induced hearing loss "disability" as defined by VA regulation under section 3.385.

3.  The current hearing loss disability is at least as likely the result of noise exposure in service as it is the result of some other cause or factor.

4.  Current tinnitus is at least as likely the result of service-connected bilateral sensorineural hearing loss as it is the result of some other cause or factor. 



CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.385 (2012).

2.  Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In the decision below, the Board has granted the Veteran's claims for service connection, and therefore the benefits sought on appeal have been granted in full.  Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted.  See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

Service Connection for Bilateral Hearing Loss

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  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 establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, 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.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system.  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)).  

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought."  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. § 3.303(b).

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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 Test are less than 94 percent."  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service.  See Hensley, 5 Vet. App. at 159.  When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service.  Id. at 160.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.

In this case, the Veteran made his original claim for VA benefits in 2003, and the RO was not able to obtain his service treatment records which are presumed to have been lost in a fire at the National Personnel Records Center (NPRC) in July 1973.  Therefore, because there are no records relevant to sensorineural hearing loss in service at all, the Board cannot conclude that that particular chronic disease was "shown as such in service" ("meaning clearly diagnosed beyond legitimate question") for the purposes of service connection under section 3.303(b).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  Nevertheless, the Board notes that the evidence in this case provides an adequate basis for a grant of service connection under 3.303(a), and therefore the Board will not discuss entitlement under section 3.303(b).  

In order for service connection to be granted under section 3.303(a), there must be a link or nexus between a current hearing loss "disability" as defined under section 3.385 and an injury or disease in service.  38 C.F.R. § 3.303(a), (d).  With regard to current hearing loss, audiometric testing on a June 2008 VA Audio examination showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
60
70
70
LEFT
20
25
55
65
75

Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 86 percent in the left ear.  Based on these findings, the Board concludes that the Veteran currently has a hearing loss disability as defined by VA regulation for the purpose of entitlement to service connection.  38 C.F.R. § 3.385.  Therefore, the remaining question in this case is whether that current disability had its onset in service or is otherwise the result of a disease or injury incurred in service.

The Veteran alleges that the injury he sustained to his ears in service which has resulted in his current hearing loss was acoustic trauma as a result of exposure to loud noise because his duty in service was a gunner on a 155mm Howitzer.  See Hearing Transcript, p. 3.  The few service records that are in the file show that the Veteran was assigned to an artillery unit that did involve training on the 155mm Howitzer ("Btry B (155mm How), 1st FA Bn, 9th Arty").  The RO noted in the November 2008 Rating Decision that the Veteran's military occupational specialty (MOS) was artillery gunner.  Accordingly, based on this evidence, the Board concludes that the Veteran was exposed to loud noise in service, and the remaining question in the case is whether there is a link between his current hearing loss and noise exposure in service.

With regard to this question, the evidence is conflicting.  In May 2011 letter, a private doctor in an ENT (Ear, Nose, and Throat) practice noted that "[p]ure tone hearing test reveal[ed] a symmetric moderate to severe bilateral high frequency sensorineural hearing loss."  The doctor also stated, "It can be assumed that [the Veteran]'s 2-year stint as a gunner in the artillery without hearing protection at least partially contributed, to which degree we cannot ascertain, to his hearing loss that he has today."  On the other hand, the June 2008 VA audiologist conceded that "artillery noise is likely to cause noise-induced hearing loss" but then indicated that it would be "pure speculation as to the exact etiology of the present hearing loss, although noise-induced hearing loss is present."  

With regard to the VA opinion, medical opinions are not automatically inadequate when "the examiner states he or she cannot reach a conclusion without resort to speculation."  Jones v. Shinseki, 23 Vet. App. 382, 391 (2010).  The Board may rely on a speculative opinion, provided that "the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence."  Id.  

In the case, the VA examiner stated that there was insufficient evidence to determine a nexus between the Veteran's current hearing loss and military service and then noted that "[s]ervice medical record was only partially available . . . ."  However, the Board notes that, despite the absence of service treatment records, the injury in service-noise exposure-had already been conceded by the examiner, and so it is not clear how the absence of service records affected the examiner's ability to render an opinion about a likely relationship, if any, between that injury and the current hearing loss, which the examiner also acknowledged was "noise-induced" hearing loss.

The VA examiner's statement "suggested," but did not actually state, other reasons for her opinion that it would be "pure speculation as to the exact etiology of the present hearing loss, although noise-induced hearing loss is present."  For example, she noted that hospital records submitted to the RO in 2003 in support of claim for service connection for a left ankle condition "were silent for any complaint of hearing loss . . . ."  She also noted that there were no audiometric test results "with a time line consistent with the [m]ilitary [s]ervice."  The examiner did not make clear what affect the absence of complaints of hearing loss on a report about an ankle condition or the absence of audiometric test results contemporaneous with service has on her ability to render an opinion about the likelihood that current hearing loss was the result of noise exposure in service as opposed to its being more or less likely the result of some other factor or cause.  The VA examiner stated, "[A] 40 year post [service] noise-induced hearing loss is inconsistent with the magnitude of high frequency hearing loss noted for today's audiometric examination."  Here, she may have been suggesting that, if the Veteran's hearing loss was the result of noise in service over 40 years ago, then the severity ("magnitude") of his hearing loss currently would be worse than test results show it to be.  However, the Board notes again that the examiner does not actually make these connections but merely provides "suggestions" or "implications" rather than clear explanations for her ultimate conclusion that she cannot provide an opinion without speculation. 

The VA examiner also stated that the Veteran reported having worn hearing protection in his civilian employment "for over 40 years" but then stated, "Hearing protection devices were not required or recommended before the 1970's, according to OSHA."  Again, the examiner did not make clear the ramifications of these statements.  The Board notes that, assuming the Veteran worked 40 years after service that would have been during the four decades of the 1960s, 1970s, 1980s, and 1990s, and so assuming that he worked from 1960 to 1975 in a noisy environment until OSHA required hearing protection, was the examiner implying that it is more likely that his current hearing loss is the result of those 15 years or so of civilian noise exposure rather than the result of noise exposure in service?  If that is what she meant, she did not state it.  Moreover, at the hearing before the Board, the Veteran testified that much of his civilian work experience was in an office and not in noisy environments and that no experience in civilian life exposed him to noise as loud as the artillery he was exposed to in service.  See Board Hearing Transcript, p. 9.

It appears that both the VA audiologist and the private doctor agreed that the Veteran has noise-induced hearing loss but that it is difficult, or perhaps impossible, to determine to what degree the noise in service contributed to it and to what degree post-service noise contributed to it.  As the private doctor stated, "It can be assumed that [the Veteran]'s 2-year stint as a gunner in the artillery without hearing protection at least partially contributed, to which degree we cannot ascertain, to his hearing loss that he has today."  However, the Board notes that for the purposes of service connection it is not required that such "contributions" be apportioned precisely but rather that an opinion be stated in terms of an approximation or "likelihood" that current hearing loss is the result of noise exposure in service as opposed to its being more or less likely the result of some other cause or factor including post-service noise exposure.

Given the two opinions discussed above, the Board concludes that the Veteran's current noise-induced sensorineural hearing loss is as least as likely the result of noise exposure in service as it is the result of some other factor or cause including post-service noise exposure.  Therefore, the Board will grant the benefit of the doubt in favor of the Veteran in this regard and grant service connection for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Service Connection for Tinnitus

Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id. 

Because the Board is granting service connection for hearing loss in this decision, the question arises as to whether service connection for tinnitus may be considered on a secondary basis, i.e., as proximately due to or the result of the service-connected hearing loss disability.  38 C.F.R. § 3.310(a).  In this case, the June 2008 VA audiologist rendered the opinion that the Veteran's tinnitus is more likely than not related to his hearing loss.  However, the audiologist provided no explanation for this opinion.

Nevertheless, the Board notes that 'an associated hearing loss is usually present' with tinnitus.  THE MERCK MANUAL, SEC. 7, CH. 82, APPROACH TO THE PATIENT WITH EAR PROBLEMS.  In addition, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id. Finally, the Board notes that 'high frequency tinnitus usually accompanies [noise-induced] hearing loss.'  THE MERCK MANUAL, SEC. 7, CH. 85, INNER EAR.  While having to rely on its own reading of medical treatise evidence regarding a relationship between tinnitus and sensorineural hearing loss is not evidence that the Board would find as useful as the report of a qualified examiner who could discuss such a relationship in this particular case, the Board finds, as it did with the claim for service connection for the hearing loss disability, that the evidence provides a sufficient basis in this case on which to resolve reasonable doubt in favor of the Veteran.  Therefore, resolving all reasonable doubt in his favor, it is as likely that tinnitus is the result of the now service-connected hearing loss as it is to some other cause or factor.  Accordingly, service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs