Citation Nr: 1311869	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  10-42 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.  

2. Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active military duty from August 1963 to August 1967.  

These issues come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Louis, Missouri.  In that decision, the RO denied claims for service connection for bilateral hearing loss and tinnitus.  

In August 2011, the Veteran testified before the undersigned at a Board hearing.  A transcript is in the file and has been reviewed.  


FINDINGS OF FACT

1. Resolving all doubt in the Veteran's favor, bilateral sensorineural hearing loss had its onset during active service.  

2. Resolving all doubt in the Veteran's favor, tinnitus had its onset during active service.  


CONCLUSIONS OF LAW

1.  The criteria for an award of service connection for bilateral sensorineural hearing loss have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012).  

2.  The criteria for an award of service connection for tinnitus have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary.  

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a).  However, in Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit held that § 3.303(b) does not apply to bilateral hearing loss claims.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002).  It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case.  38 C.F.R. § 3.102 (2012).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the service origin of a disability such doubt will be resolved in favor of the claimant.  Id.  

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002).  Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a 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."  Jandreau, 492 F.3d at 1377.  

The Board must also assess the credibility, and probative value of the evidence of record in its whole.  Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997).  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

For 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 (2012).  

The Board finds that service connection for bilateral hearing loss and tinnitus is warranted here, as the evidence is in equipoise.  This determination is based on the competent and credible statements of the Veteran and the medical opinion evidence in the file.  

The Veteran contended in his January 2009 claim that his bilateral hearing loss and tinnitus was caused by service in the Navy because he served on submarines and was exposed to shipboard noise; he was a machinist mate and was exposed to engine room noise.  He was not issued hearing protection.  On his October 2010 appeal form, he asserted that military service was the start of his bilateral hearing loss and tinnitus.  At the August 2011 Board hearing, the Veteran did not remember being issued hearing protection on his ship.  (Transcript, p 5.)  He worked long days in a noisy, enclosed environment.  (Transcript, p 6.)  He had ringing in his ears from chipping paint off that stayed with him.  Id.  More recently, he had trouble hearing his ex-wife when she was not speaking directly to him.  (Transcript, p 8.)  

Service treatment records show that upon enlistment in August 1963, a report of medical history showed no hearing or ear, nose and throat trouble.  Hearing acuity was as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units):



HERTZ

500
1000
2000
3000
4000
RIGHT
15
10
10
N/A
5
LEFT
25
10
10
N/A
5

The July 1967 separation examination does not show exact hearing acuity.  Instead, a whispered voice test shows hearing acuity was 15/15.  

The Veteran's DD 214 notes his specialty was "marine mechanics."  

Post-service records show in May 2007 the Veteran visited VA audiology.  Both ears showed normal hearing sensitivity at lower measurements and mild to moderate severe sensorineural hearing loss in the upper ranges.  Hearing acuity was as follows: 



HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
30
50
60
LEFT
5
5
25
45
55

Speech recognition scores were good, with ratings of 92 percent in both ears.  It was noted at this appointment that he also complained of tinnitus and had some occupational noise exposure as a carpenter.  

In April 2008, a VA nursing assessment noted as a matter of course that the Veteran's hearing appeared normal and he did not have a hearing aid.  

In October 2009, the Veteran attended a VA audiology examination.  Hearing acuity was as follows:  



HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
40
55
60
LEFT
10
10
40
55
60

Speech recognition scores were 96 percent in both ears.  Tinnitus was as likely as not a symptom associated with bilateral hearing loss.  

Occupationally, the Veteran reported military noise exposure in service.  He also worked ten years in road construction and then part-time as a handyman and carpenter.  He had a history of being treated with a medication that "might be ototoxic" according to his treating physician.  The examiner noted that only a whispered voice test was given at discharge and the initial hearing evaluation at entrance to service was normal.  The examiner could not establish a link between the current hearing loss and military service without resorting to speculation.  

The Board finds that a current disability has been established, as the Veteran has hearing loss for VA purposes under § 3.385 and that there is lay evidence of in-service incurrence of acoustic trauma established by the Veteran's lay testimony and service records.  38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167.  

The Veteran stated he had acoustic trauma in service and the Board finds him to be competent to state that he experienced hearing loss and ringing in his ears while in service.  Additionally, the Board finds him to be credible in his statements and finds them consistent with his service records showing the circumstances of his service working in "marine mechanics."  As a result, the Veteran's assertions are assigned high probative value and great weight.  See Jandreau, 492 F.3d at 1377.  

The Board finds that the benefit of the doubt rule is for application here.  Resolving doubt in the Veteran's favor, bilateral sensorineural hearing loss and tinnitus had their onset in service and service connection is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  



ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs