Citation Nr: 1310115	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-26 118	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel

INTRODUCTION

The Veteran had active service from January 1969 to December 1970.

These matters come before the Board of Veterans' Appeals (BVA or Board) from a 
December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, on behalf of the RO in Chicago, Illinois.

In September 2011 the Veteran testified during a Board hearing before the undersigned at the RO.  A transcript of that hearing is of record.

In April 2011 correspondence the Veteran's representative raised the issue of service connection for a disability of the eye secondary to service-connected disability.  While this issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  The Veteran had acoustic trauma in service and has provided credible lay evidence that his tinnitus began during service.

2.  The Veteran had acoustic trauma in service and has provided credible lay evidence of continuity of hearing loss symptoms in service and since service.







CONCLUSIONS OF LAW

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

2.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable decision to grant the Veteran's claims of service connection for tinnitus and bilateral hearing loss, any deficiency as to VA's duties to notify and assist, as to those issues, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot.

Applicable Laws-Service connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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.  38 C.F.R. § 3.303(d).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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).  This rule does not mean that any manifestations in service will permit service connection.  To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).

In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.  As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309.  Moreover, the concept of continuity of symptomatology as clarified by Walker is applicable in this case.  The November 2008 VA examiner has indicated that the Veteran's hearing loss is sensorineural in nature.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

Analysis

The Veteran asserts that he has hearing loss and tinnitus as a result of exposure to significant small arms fire and other acoustic trauma during service.  The Veteran has indicated that he did not use ear protection during service.

The Veteran's DD Form 214 reflects that his military occupational specialty was Communication Center Operator.  The Veteran had service in the Republic of Vietnam and is in receipt of the Combat Action Ribbon.

The Veteran's December 1968 enlistment examination noted that the Veteran's ears were normal.  Audiometric findings were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
0
15
15
LEFT
15
15
0
15
0

The service treatment records contain no complaints or treatment related to hearing loss or tinnitus.  The Veteran's November 1970 service separation examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15; there was no audiological testing.

At a November 2008 VA audiological examination the examiner, in reviewing the Veteran's service medical records and observing that the Veteran's service separation examination had consisted of voice whisper testing, stated that a "whispered voice test does not rule out a mild or high frequency hearing loss."  The Veteran stated that while serving in Vietnam he had been exposed to mortar and gunfire on a daily basis; he had not worn ear protection devises at that time.  The Veteran reported some occupational noise exposure as a truck driver following service.  The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes.  The examiner stated that the Veteran's tinnitus was likely a symptom of the Veteran's hearing loss.  The examiner essentially indicated that the Veteran's hearing loss and tinnitus were not related to his military service.

At the September 2011 Board hearing the Veteran indicated that he was exposed to significant small arms fire in fire fights and other enemy activity.  The Veteran stated that he noticed that he had hearing loss and ringing in his ears at the time of his separation from service.  The Veteran testified that shortly after he got out of service his family members had noticed his hearing loss.  However, he readily admitted that he had not had a hearing test until 2008.  The Veteran explained that he had ignored his hearing loss and tinnitus until his wife insisted that he have it checked out.  He had simply decided that he would just need to live with his hearing problem.  He added that he had worked for years as a truck driver, that the truck's driver's cab was "pretty well insulated," and that his overall post-service noise exposure was relatively minimal. 

As for tinnitus, the Board notes that the Veteran is competent to report that he experiences ringing in his ears, which is the clinical feature of tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The Board finds that the Veteran's statements as to onset of tinnitus in service and the persistence of ringing in his ears since that time are consistent and credible, and the Board finds that the Veteran's lay statements are sufficient to establish service connection for tinnitus under these circumstances.

As for hearing loss, the Board finds that the Veteran's statements and November 2011 Board hearing testimony as to the onset of hearing loss and continuity of symptomatology of hearing loss since service are credible, and the Board finds that the Veteran's lay statements are sufficient to establish continuity of symptomatology of hearing loss in this case.  Both the Veteran and the Board acknowledge that chronic hearing loss was not documented in service or for many years thereafter.  However, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).  

In this regard, while the VA opinion of record is not favorable to the Veteran, the November 2008 VA examiner clearly acknowledged that a "whispered voice test does not rule out a mild or high frequency hearing loss."  The November 2008 VA examiner appeared to attribute the Veteran's hearing loss largely to occupational noise exposure.  The Veteran, however, essentially denied that he had excessive occupational noise exposure during his September 2011 Board hearing, and even went into detail concerning the insulated truck cab that he operated for 12 years.

In light of the credible lay evidence of hearing loss and tinnitus in service, continuity of symptoms since service, evidence linking both disorders to noise exposure, and resolving any doubt in the Veteran's favor, service connection for tinnitus and bilateral hearing loss is warranted.  

ORDER

Service connection for tinnitus is granted.

Service connection for bilateral hearing loss is granted.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs