Citation Nr: 1311186 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-42 037A ) 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: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from August 1967 to August 1969. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Board remanded these matters for additional development. FINDINGS OF FACT The competent evidence of record is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110 , 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.385 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 3 8 U.S.C.A. §§ 1110 , 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). If sensorineural hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year of separation from separation from active service, then they are presumed to have been incurred during active service, even though there is no evidence of hearing loss during service. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). 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 (2012). 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 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has bilateral hearing loss and tinnitus as a result of noise exposure while serving with an artillery unit in service. The Board notes that the Veteran is a medical doctor and that he has the knowledge and skill to provide a competent medical opinion regarding diagnosis and etiology. The Veteran reports that while stationed at Quann Tri, South Vietnam, with the Headquarters and Headquarters Battery (HHB), 5th Battalion, 4th Artillery, 5th Infantry Division, he was the battalion surgeon and was exposed to 155 millimeter howitzers as part of his daily activities. The Veteran's service records show that, prior to service in Vietnam, he was attached to the HHB 5th Battalion, 4th Artillery, 5th Infantry Division at Fort Carlson, Colorado, as a battalion surgeon. Approximately three weeks prior to departing for Vietnam, the Veteran was transferred to Headquarters and Headquarters Company (HHC), 1st Infantry Brigade, in Fort Carson, Colorado, with a military occupational specialty of preventive medicine officer. The Veteran then served in Vietnam for approximately seven months as a preventive medicine officer attached to HCC, 1st Infantry Brigade, before returning to the United States. His service medical records are negative for any complaints or clinical findings of hearing loss or tinnitus. On separation examination in July 1969, the audiometer showed 0 for all levels tested. VA treatment records show that in March 2007 the Veteran was seen for a first visit with a new primary care physician. He complained of left ear blockage. He stated that he had pain about a week earlier which he medicated with ear drops, but, now had a feeling of blockage and decreased hearing. It was noted that he was a retired ophthalmologist and planned to work as a wound care clinician. The assessment was cerumen impaction. In April 2007, the Veteran was seen by an ENT. It was noted that the Veteran stated he did not use Q-Tips, but felt that his hearing was down and he was told that he had wax in both ears. A review of systems revealed hearing loss and wax in both ears. The diagnosis was impacted wax in both ears, cleaned with a looped curette. In May 2007, the Veteran received treatment for otitis. The Veteran reported that he was seen by an (ENT) specialist in April 2007 for cerumen disimpaction, and shortly thereafter, he developed infection in the left ear with drainage. He reported that an ENT in Washington, D.C., informed him that he had a perforated ear drum and prescribed antibiotics. The Veteran did not report pain or drainage at the time of the May 2007 VA treatment. On examination, the right tympanic membrane was cloudy and there was cerumen in the ear canal. The left ear tympanic membrane was not visualized due to cerumen and a tortuous ear canal. The VA physician diagnosed otitis and referred the Veteran for follow up with an ENT specialist. A review of private medical records shows treatment for ear-related problems in July 2007. At that time, the Veteran reported a history of left-sided otitis media a few months prior. He had experienced copious otorrhea and was diagnosed with a tympanic membrane perforation. He was treated with antibiotics and was left with a tympanic membrane perforation, mild fullness, and hearing loss. He had been scheduled for a tympanoplasty, but canceled it upon learning that he would have to cease taking medication required for an unrelated medical condition. At the time of the July 2007 treatment, the Veteran reported that he still felt his hearing was decreased in the left ear and that he had mild fullness in the left ear. However, he had no more otorrhea and denied tinnitus and vertigo. He reported a history of recurrent cerumen impactions but not ear infections. Upon physical examination, the right ear had a mild cerumen impaction, which was removed without difficulty. The left ear was noted to have a tortuous canal, and, upon removal of the cerumen, the tympanic membrane was noted to have a 25 to 30 percent posterior superior perforation. The middle ear was healthy in appearance. Audiometric testing revealed mildly asymmetric mixed hearing loss on the left more than the right. The right ear was noted to be essentially normal through 2000 Hertz with a severe sensorineural hearing loss in the higher frequencies. The left ear was noted to have moderate to severe mixed hearing loss supported by decreased mobility in the tympanogram. Word recognition ability was recorded as 96 to 100 percent in the right ear and 100 percent in the left ear. The private physician's impression was mixed hearing loss and tympanic membrane perforation due to recent otitis media. The Veteran has also submitted in support of his claim a May 2010 private medical opinion from the ENT physician who treated him in July 2007. The physician indicated that he had treated the Veteran for a number of years for hearing loss and tinnitus. The physician noted that the Veteran had a history of significant noise exposure while in the military, and age-related risk factors. Physical examination of the ears was essentially normal other than recurrent cerumen impactions, which did not significantly impact hearing once removed. The physician indicated that full audiological evaluation revealed a severe high frequency sensorineural hearing loss above 2000 Hertz , and that the Veteran's last audiogram of April 2009 revealed a classic upsloping in the highest frequencies consistent with noise-induced hearing loss. The physician then opined that the Veteran's hearing loss and tinnitus were as likely caused by noise exposure as age, and further noted that the severity of the Veteran's hearing loss while still in his 60s revealed likely early damage to the cochlear system due to his noise exposure. In July 2011, the Veteran underwent a VA audiological examination. The examiner noted a review of the claims file and included pertinent medical history of the Veteran within the report. The Veteran complained of bilateral hearing loss and tinnitus. The Veteran complaint of tinnitus that began more than 10 years ago. He reported noise exposure as a physician from artillery and Howitzers. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 55 55 LEFT 50 40 25 55 70 Speech discrimination scores on the Maryland CNC word list were 94 percent in the right ear and 96 percent in the left ear. The diagnosis was right ear, normal to moderately severe sensorineural hearing loss and left ear normal to severe mixed hearing loss. The VA examiner opined that bilateral hearing loss and tinnitus were not caused by or a result of military service. The examiner noted that enlistment and separation audiograms were within normal limits with no standard threshold shifts. There was no service medical record evidence of hearing loss or tinnitus. Tinnitus onset was not linked by the Veteran to any military service episode. The examiner cited to an Institute of Medicine (IOM) study in support of her opinion. Thereafter, an additional VA audiological opinion was obtained in January 2012. The examiner noted pertinent medical evidence of record, including the Veteran's statements. The examiner opined that bilateral hearing loss and tinnitus were not caused by or a result of military service. This examiner also noted the absence of bilateral hearing loss and tinnitus in the Veteran's service medical records. In addition, the examiner noted there was no evidence of tinnitus in the July 2007 private medical record and the Veteran's hearing loss was mixed. The configuration was not consistent with noise exposure damage. The examiner noted that the Veteran believed that hearing loss and tinnitus onset were consistent with military service, but the examiner concluded there is no supporting evidence and no specific circumstances of hearing loss and tinnitus onset described. Two years of non-combat military service with exposure to 155 howitzers at a distance did not result in cochlear damage or tinnitus. The examiner furthered that the Veteran was not a 155 howitzer crew member. There was no evidence of acoustic trauma that resulted in damage such as additional hearing tests, ENT examination, or light duty status. There was a significant gap in hearing test data from the 1960s to 2007. It seemed likely that hearing loss and tinnitus began at or about the early 2000s. There was evidence of heart and vascular disease that could account for increasing hearing loss. There was a 2007 cerumen impaction with a resulting infection which could account for the Veteran's current hearing loss and tinnitus. The examiner further stated that the private doctors medical opinion did not include a review of the Veteran's military service records that documented normal bilateral hearing and speculated using 1990s data upon hearing levels and auditory system damage of the 1960s. There was no evidence of military service hearing loss or tinnitus onset bilaterally. The date and circumstance of tinnitus onset do not match the Veteran's military service period and circumstances of onset during military service. This VA examiner also cited to various medical literature in support of his opinion and rationale. The Board acknowledges that neither bilateral hearing loss nor tinnitus was shown in service. However, the absence of hearing loss and tinnitus during active service is not fatal to the Veteran's claims, which is the underlying basis for the VA examiners' unfavorable opinions. However, neither the July 2011 nor the January 2012 VA examiners considered whether the Veteran's hearing loss could otherwise be causally related to exposure to acoustic trauma during his active service. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board also questions some of the January 2012 VA examiner's statements in support of the opinion. The Veteran was in Vietnam and while not a 155 howitzer crew member, that fact, in and of itself, does not rule out his potential exposure to acoustic trauma from 155 howitzers. In addition, when addressing the private medical opinion, the VA examiner suggested that the private ENT speculated using 1990s data of hearing levels. However, the Board is unclear where this information is derived. The Board notes that further inquiry could be undertaken with a view towards development of these claims so as to obtain an additional medical opinion. However, in view of the totality of the evidence, including the Veteran's likely associated in-service noise exposure, his competent opinion as a medical doctor himself, and his private ENT physician's May 2010 opinion of record, the Board finds that the probative medical evidence of record is at least in equipoise as to the question of whether his bilateral hearing loss and tinnitus are as likely as not due to noise exposure during his period of active service. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs