Citation Nr: 1309960	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-31 738A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and two witnesses


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel
INTRODUCTION

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).

The Veteran served on active duty with the United States Navy from January 1943 to January 1946.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the claims on appeal. 

The Veteran testified at a February 2013 hearing held before the undersigned Acting Veterans Law Judge via videoconference from the RO.  A transcript of the hearing is associated with the claims file. 

In addition to a paper claims file, the Veteran also has an electronic file known as a Virtual VA file.  The Board has reviewed both files prior to reaching the decision below.  


FINDINGS OF FACT

1.  The Veteran was exposed to excessive noise in service in connection with his duties.

2.  Currently diagnosed bilateral sensorineural hearing loss had its onset during active duty.

3.  Currently diagnosed tinnitus was first manifested during active duty.



CONCLUSIONS OF LAW

1.  The criteria for service connection of bilateral hearing loss are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  The criteria for service connection of tinnitus are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Analysis

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.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.
With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id at 159.

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, 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 Veteran contends that he was exposed to significant noise during service and has experienced bilateral hearing loss since, as well as intermittent tinnitus.  The Veteran does not contend that he actually sought treatment for hearing loss or tinnitus during service, but he does contend that he noticed hearing difficulties beginning during active duty and they have progressively worsened.  He has also experienced recurrent tinnitus.

Enlistment and discharged examinations both show whispered voice testing within normal limits.  The service treatment records (STRs) do not show any treatment for any hearing problems, nor has the Veteran contended otherwise.  His DD Form 214 listed his MOS as Fireman.  

Following service, the evidence of record shows that the Veteran was not treated by VA for hearing problems until the late-2000s.  As discussed during his VA examination, his post-service employer arranged for one of his current hearing aids.  The Veteran continues to receive VA treatment for his hearing loss disability, and has received bilateral aids from VA.  He has not complained of or sought treatment for tinnitus.

The Veteran was afforded a VA audiological examination in April 2010, at which time, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
60
75
85
LEFT
40
45
55
60
60

Speech audiometry revealed speech recognition ability of 92 percent in each ear.  The examiner diagnosed the Veteran as having bilateral sensorineural hearing loss with normal middle ear status.  

During the examination, the Veteran reported in-service noise exposure as a boiler tender in an engine room without hearing protection.  He also reported post-service noise exposure both occupationally and recreationally.  He worked 37 years in construction without wearing hearing protection, and was "awarded" lifetime hearing aids from his civilian employer for his hearing loss.  He also endorsed lifetime seasonal hunting without hearing protection.  During the examination, the Veteran denied any current complaints of tinnitus, and denied any history of tinnitus.  Following review of the Veteran's claims file, interview, and examination, the VA examiner indicated that she could not provide an opinion as to whether the Veteran's bilateral hearing loss was caused by or a result of in-service noise exposure.  She did not provide a reason for her inability to provide an opinion.  

During the Veteran's February 2013 videoconference hearing, he testified that he did not have any hearing problems prior to service and he first noticed hearing loss while on active duty when he had to ask people to repeat themselves.  He also reported that he had experienced tinnitus in service on occasion, as well as since.  While aboard his ships during service, he spent time below deck in noisy areas near the water tanks and in the fire room/boiler room.  He recalled that the area below deck was very noisy.  He testified that he was not offered hearing protection in service, nor did he understand the concept of hearing protection.  When asked about the hearing aid provided by his civilian employer, the Veteran indicated that he was given a hearing test through his work and they decided to give him a hearing aid for one ear.  He denied undergoing yearly evaluations for his hearing in his post-service employment.  

Hearing Loss

The Board accepts, based on the evidence proffered, that the Veteran has a current bilateral hearing loss disability.  The May 2010 VA examination report included a diagnosis of bilateral sensorineural hearing loss.  Furthermore, the reported audiological results met the requirements of 38 C.F.R. § 3.385 for establishing a current bilateral hearing loss disability.  

Upon careful review of the evidence of record, the Board finds that there is an approximate balance of positive and negative evidence to support the Veteran's claim of entitlement to service connection for bilateral hearing loss disability.  

The April 2010 VA examiner indicated that she could not provide an opinion as to the etiology of the Veteran's bilateral hearing loss without resort to speculation.  The Board may rely on a statement that an opinion cannot be provided without resort to "mere speculation" if it is clear that the procurable and assembled data were fully considered and the basis for the opinion is provided by the examiner or apparent upon a review of the record.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  However, this examiner does not indicate that she considered all the procurable and assembled data prior to her "mere speculation" statement because she provided no reason for her inability to provide the requested opinion.  Thus, the examination carries no probative weight.

The Veteran's lay statements concerning excessive noise exposure are not only competent in light of his MOS, but also are credible.  Further, his competent reports of the impaired hearing he subjectively experienced both during and after service demonstrate onset and progression of the disability.  His lay statements have probative value.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

As there is no probative medical opinion regarding a nexus between service and current hearing loss, the Veteran's competent and credible assertions as to the onset of his hearing loss and its progressive worsening, are the sole relevant evidence of record.  They favor his claim.  When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, service connection is warranted for bilateral hearing loss.

Tinnitus

Similarly, service connection for tinnitus is warranted.  The veteran is fully competent to report the symptoms he subjectively experiences through his five senses; accordingly, his reports of tinnitus, or ringing in the ears, constitute competent evidence of disability, both during and continually after service.  Layno v. Brown, 6 Vet. App. 465 (1994).

The Veteran has stated that he has never sought treatment for tinnitus, and did not recall ever having even mentioned it to someone during or after service.  There are no records of treatment or complaint.  He maintains that it was and is, nevertheless, present.  It is true that at the April 2010 VA examination, he denied current tinnitus, or any past occurrences.  However, at the February 2013 hearing he reported that he did not fully understand all of the doctors questions about the disability.  Given the demonstrated problems hearing and understanding shown at the hearing in conversation between the undersigned and the Veteran, such a lack of comprehension is entirely possible.  The Board must therefore conclude that the Veteran's denial of tinnitus represents a misunderstanding or misstatement.  He has at all other times reported recurrent, if intermittent or infrequent, tinnitus.  Accordingly, the Board finds the Veteran's competent reports of tinnitus to be credible as well.

Therefore, the preponderance of the competent and credible evidence of record establishes the onset of tinnitus in service, and its presence since.  The Veteran's favorable statements outweigh the conclusions of the examiner, which were based on inaccurate reports.


ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.


______________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs