Citation Nr: 1310375 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-14 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from December 1955 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2012, the Board remanded the claims for additional development. The issue of entitlement to service connection for depression has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 evidence of record is at least in equipoise as to whether the Veteran's bilateral hearing loss had onset in service. 2. The evidence of record is at least in equipoise as to whether the Veteran's tinnitus had onset in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for tinnitus and bilateral hearing loss. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that he has bilateral hearing loss and tinnitus that are related to service in the Air Force. He specifically alleges that he was exposed to acoustic trauma while working near a flight line and relates an incident when several aircraft exploded. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz ). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the law 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. See 38 C.F.R. § 3.385 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the medical evidence shows that the Veteran has bilateral hearing impairment as defined by VA regulation. 38 C.F.R. § 3.385. In addition, the evidence also shows current tinnitus. Specifically, the Veteran reported on VA examination in December 2012 that he has recurrent left ear tinnitus. The audiologists appeared to have found the Veteran's account of current tinnitus credible. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the presence of current tinnitus is also established. Having determined that the Veteran currently has diagnoses of tinnitus and bilateral hearing loss for VA disability purposes, the remaining question before the Board is whether there is nexus between the currently diagnosed tinnitus and hearing loss and his service. The Veteran had active Air Force service from December 1955 to July 1959. His DD-214 Form indicates that his occupational specialty was woodworker. The Veteran's service treatment records are unavailable and were apparently destroyed in the 1973 fire at the National Personnel Records Center (NPRC). Although the service medical records are unavailable, the Veteran is competent to describe symptoms of hearing loss and tinnitus. However, there is no evidence contemporaneous with service from any other source to affirmatively show that bilateral hearing loss, as defined by 38 C.F.R. § 3.385, or tinnitus, was present coincident with service. Thus the Board finds that hearing loss and tinnitus were not shown in service. 38 C.F.R. § 3.303(a) (2012); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Even without service medical records, service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by the diagnosis of the disability after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d). As for continuity, the Veteran reported that he did experienced recurrent symptoms of hearing loss and tinnitus in service and those continued to be increasingly present after discharge from service. Additionally, in an undated statement submitted in support if the claim in September 2012, the Veteran's spouse, who married the Veteran in 1961, indicated that she met the Veteran a year after discharge from service and at that time he exhibited hearing difficulties. She noted that when they started dating the Veteran informed her that he experienced acoustic trauma in service. Reportedly, the Veteran noted onset of hearing loss and ringing in his ears following in-service excessive noise exposure and the conditions had been symptomatic ever since service. As there is no competent evidence either contemporaneous with or after service that bilateral hearing loss as defined by 38 C.F.R. § 3.385, or tinnitus, was otherwise noted or observed during service, the principles of service connection pertaining to recurring symptomatology under 38 C.F.R. § 3.303(b) do not apply. After service, a private treatment record dated in February 2001 and a VA treatment record dated in August 2004 show treatment for hearing loss and tinnitus. Significantly, the competent medical evidence associates the Veteran's current bilateral hearing loss and tinnitus with noise exposure in service. On VA examination in December 2012, the Veteran reported having unilateral constant tinnitus in the left ear, which had onset around 1956 or 1957. He attributed the tinnitus to excessive noise exposure while working on the flight line during service. The Veteran also related a 28 year occupational history of noise exposure working in a factory, however, he reported using hearing protection. The Veteran's history was also significant for family hearing loss. The examiner noted that a private treatment record in 2001 showed moderate sloping to profound high frequency hearing loss, bilaterally. Audiometric testing in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz on the right were 45, 40, 55, 80, and 90, and on the left were 40, 30, 50, 70, and 80. His speech recognition scores were 74 percent in the right ear, and 72 percent in the left ear. The examiner diagnosed tinnitus and bilateral sensorineural hearing loss and opined that it was at least as likely as not that the Veteran's hearing loss and tinnitus were caused by or the result of an event in military service. The examiner based the opinion on the finding that the Veteran's report of onset of hearing loss and tinnitus during service was uncontroverted as there was no evidence to refute his contentions. There is no competent medical evidence that contradicts the examiner's opinion in support of the claims. The opinion was rendered after a review of the claims file and an examination of the Veteran. A rationale in support of the opinion was provided. As service connection may be granted for any disease first diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes a link to service, and as the competent evidence of record favors the claims, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 C.F.R. § 3.303(d). As the competent medical evidence of record etiologically links the Veteran's bilateral hearing loss and tinnitus to service, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's bilateral hearing loss and tinnitus resulted from acoustic trauma in service. Therefore, reasonable doubt will be resolved in the Veteran's favor and the Board finds that bilateral hearing loss and tinnitus had onset during his service and service connection is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs