Citation Nr: 1311279 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-32 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for diabetes mellitus type II due to Agent Orange Exposure. 4. Entitlement to service connection for bilateral foot pain/neuropathy associated Agent Orange Exposure. 5. Entitlement to service connection for a back condition. 6. Entitlement to service connection for a neck condition. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for erectile dysfunction. 9. Entitlement to service connection for bilateral hand arthritis. 10. Entitlement to service connection for carpal tunnel syndrome. 11. Entitlement to service connection for depression. 12. Entitlement to service connection for hip pain. REPRESENTATION Appellant represented by: Madonna Richardson, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from August 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before a Decision Review Officer in March 2009 and the undersigned Veterans Law Judge in December 2012. A review of the Virtual VA paperless claims processing system reveals only the Veteran's testimony before the undersigned Veterans Law Judge; there are no other additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. Extending the benefit of the doubt to the Veteran, tinnitus is shown as likely as not to be due to exposure to loud noise during active service. 3. Extending the benefit of the doubt to the Veteran, bilateral hearing loss is shown as likely as not to be due to exposure to loud noise during active service. 4. On April 22, 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the issues of entitlement to service connection for diabetes mellitus, bilateral foot pain/neuropathy, a back condition, a neck condition, hypertension, erectile dysfunction, bilateral hand arthritis, carpal tunnel syndrome, depression, and hip pain was requested. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1110, 1131, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for withdrawal of an appeal for the issues of entitlement to service connection for diabetes mellitus, bilateral foot pain/neuropathy, a back condition, a neck condition, hypertension, erectile dysfunction, bilateral hand arthritis, carpal tunnel syndrome, depression, and hip pain by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, with regard to the issues herein decided, the decision below is granting in full the benefits sought. Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). After a careful review of the claims file, and affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss and service connection for tinnitus is warranted. The Veteran served from September August 1965 to July 1969; according to the Veteran's personnel file and his testimony he suffered loud noise exposure while stationed on the USS America and USS Grainger. The Board finds that even though the Veteran did not report any symptoms of bilateral hearing loss or tinnitus during service he was seen for infections to both the left and right ears and was diagnosed with otitis media; this was in July 1968, August 1968, October 1968, and February 1969. In September 2008 the Veteran underwent a private hearing evaluation and in the report it was noted that the Veteran was exposed to loud noises for four years when working with jet engines and that for the past 20 years he has been wearing hearing instruments and no other history of noise exposure was reported. For the Veteran's right ear he was diagnosed with mild to moderate low frequency hearing loss from 250 Hertz to 500 Hertz, severe to profound severe hearing loss from 750 Hertz to 4000 Hertz, and no measureable thresholds from 1000 Hertz to 8000 Hertz; for the Veteran's left ear he was diagnosed with severe to profound hearing loss from 250 Hertz to 750 Hertz and no measureable thresholds from 1000 Hertz to 8000 Hertz. The private audiologist stated that acoustic trauma or loud noise exposure greater than 85 decibels over a prolonged period of time causes hearing loss and tinnitus. Thus, the Veteran's significant hearing loss is most likely due to noise exposure in service. The Veteran was afforded a VA examination in April 2009. The Veteran reported that he was exposed to jets and helicopters during active duty and that his civilian jobs included factory work and driving a truck; he stated that now he just wears his hearing aids as hearing protection and cannot stand to wear hearing protection due to his inability to hear and he denied any recreational noise exposure. The Veteran reported that his ears have been ringing since he left the military and that they ring a couple of times a week for approximately an hour. The VA examiner diagnosed the Veteran with moderate to profound bilateral sensorineural hearing loss and tinnitus. The VA examiner opined that that the Veteran's bilateral hearing loss and tinnitus were less likely as not caused by or a result of acoustic trauma or noise exposure during military service. The rationale for his opinion was that the Veteran's service treatment records lacked complaint of, or treatment for hearing loss/and or tinnitus. His enlistment audiograms showed normal hearing and the next audiogram available is 2007 which showed significant bilateral hearing impairment. The Veteran worked in potentially hazardous noise environments after his discharge from the military with reported occupations as a factory worker and a truck driver; in addition, the Veteran reported that he wore his hearing aids without hearing protection at work and that is hazardous to his hearing. He stated that without some evidence that the hearing loss occurred proximally to discharge from military service, it is less likely as not that the Veteran's current hearing loss and reported tinnitus are due to acoustic trauma during military service. The Veteran's claims file also includes an undated private treatment report that was received at the VA in December 2009. It was noted that the Veteran had longstanding hearing loss following noise exposure while serving in the Vietnam War; the Veteran reported noise exposure from canon and artillery fire, gunshots, and jet plane engines. He also reported that he did not have hearing problems prior to service but noticed decreased hearing and constant tinnitus following his tours with the Navy; he reported exposure to jet airplane engine noise, as well as cannon and artillery test fire with no hearing protection provided. After the Veteran's military service he was employed for less than one year as a factory worker and then for 20 plus years as a truck driver. The private examiner opined that the left year may have deteriorated further than the right because it was exposed to road, wind, and engine noise. However, in light of the reported military service noise exposure, as well as the time frame in which it occurred, they were confident that the Veteran's military service played a significant role in the development of his hearing loss. It was noted that he currently worked as a forklift operator away from the production line. There are two private medical opinions for the Veteran's claim and one VA examination opinion against the Veteran's claim. Despite the fact that the rationale of the April 2009 opinion is against both of the Veteran's claims the Board finds that awards of service connection for both bilateral hearing loss and tinnitus are still appropriate here. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Additionally, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). Here while the April 2009 VA examiner did not opine that the Veteran's bilateral hearing loss and tinnitus were related to his military service she did not appear to consider the Veteran's statements pertaining to continuity of symptomatology; especially that it began prior to his occupation as a truck driver. The Board notes that the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Board finds that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Indeed, the Veteran's statements and his spouse's statements as to when his bilateral hearing loss and the ringing in his ears began are important and credible evidence going toward the matters of when the conditions began. The Veteran maintains that his bilateral hearing loss and tinnitus began during service and are due to military noise exposure. Again, such noise exposure is consistent with the circumstances of his service. Throughout the course of his communications with VA, the Veteran has consistently maintained that his bilateral hearing loss and tinnitus began in active service; the Board finds that such consistency makes his statements credible. Moreover, the Board points out that he is competent to testify as to ringing in the ears during and after service. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). Given the nature of tinnitus, the Veteran is the only one who is competent to testify as to when he began to perceive tinnitus. In summary, the Veteran seeks service connection for bilateral hearing loss and tinnitus as related to in-service noise exposure. It is clear that he was exposed to in-service noise and that his post-service hearing loss meets the standard for hearing loss under 38 C.F.R. § 3.385. Based on credible statements given by the Veteran, he has experienced tinnitus in service and ever since service and his bilateral hearing loss is due to service. The Board notes that while there are two positive opinions of record, the April 2009 VA medical opinion is against the Veteran's claim but based on the positive medical opinions and the Veteran's credible statements the Board finds that the record is deemed at least in equipoise as to whether the active service noise exposure resulted in the currently diagnosed bilateral hearing loss and tinnitus. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Consequently, resolving any doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On April 22, 2010, and again during his hearing before the undersigned, the appellant expressed his desire to withdraw his appeal of the issues of entitlement to service connection for diabetes mellitus, bilateral foot pain/neuropathy, a back condition, a neck condition, hypertension, erectile dysfunction, bilateral hand arthritis, carpal tunnel syndrome, depression, and hip pain and for those issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues of issues of entitlement to service connection for diabetes mellitus, bilateral foot pain/neuropathy, a back condition, a neck condition, hypertension, erectile dysfunction, bilateral hand arthritis, carpal tunnel syndrome, depression, and hip pain and they are dismissed. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for diabetes mellitus type II due to Agent Orange Exposure is dismissed. Service connection for bilateral foot pain/neuropathy is dismissed. Service connection for a back condition is dismissed. Service connection for a neck condition is dismissed. Service connection for hypertension is dismissed. Service connection for erectile dysfunction is dismissed. Service connection for bilateral hand arthritis is dismissed. Service connection for carpal tunnel syndrome is dismissed. Service connection for depression is dismissed. Service connection for hip pain is dismissed. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs