Citation Nr: 1312335 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-39 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified at a May 2012 hearing before the undersigned. A transcript of the hearing is in the file. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss disability was caused by hazardous noise exposure during active military service. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus was caused by hazardous noise exposure during active military service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. Duty to Notify and Assist The Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus have been granted, as discussed below. Therefore, any error related to the VCAA on these claims was harmless. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran claims entitlement to service connection for a bilateral hearing loss disability and tinnitus, which he argues were caused by hazardous noise exposure or acoustic trauma during active service from duties as an infantryman. For the following reasons, the Board finds that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show 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." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation." Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. For example, the Federal Circuit held in Walker that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as it found that the claimant's hearing loss was not among the chronic diseases listed in section 3.309(a)). Id. at 1336-37, 1340. Because the Veteran has been diagnosed with sensorineural hearing loss, and organic diseases of the nervous system are defined as chronic diseases in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. As tinnitus is not listed as a chronic disability under section 3.309(a), there must be competent evidence of a medical nexus to service; evidence of a continuity of symptomatology is not sufficient by itself to establish entitlement to service connection benefits. See id. The Veteran's sensorineural hearing loss is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for organic diseases of the nervous system, which includes sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA 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 Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. A current bilateral hearing loss disability is established. Specifically, a June 2011 VA audiological examination performed in connection with this claim reflects an audiogram showing puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 40 40 50 LEFT 20 30 50 60 70 The above puretone thresholds show a hearing loss disability in both ears. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. With regard to tinnitus, this disorder is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (hereinafter DORLAND'S ) 1714 (28th ed. 1994)). It is generally subjective in type. DORLAND'S, 1956 (31st ed. 2007). Because tinnitus is subjective, its existence is generally determined by whether or not the Veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's credible and competent statements asserting that he experiences tinnitus or ringing in his ears, supported by diagnoses of tinnitus in the private treatment records, including in December 2009 and April 2012, establish that he currently has this audiological disorder. Hazardous noise exposure during active service has also been established. In this regard, where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). This presumption is rebuttable only by clear and convincing evidence. Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). While service connection for a combat-related injury may be based on lay statements alone, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (observing, in pertinent part, that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities . . . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty"); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). The Veteran does not allege and the evidence does not otherwise show combat service. Thus, the more relaxed evidentiary standard for combat-related injuries does not apply. See 38 U.S.C.A. § 1154(b). However, hazardous noise exposure is established based on the Veteran's military occupational specialty (MOS) as an infantryman, as reflected in his DD 214. This MOS has been determined by the Department of Defense to involve a high probability of hazardous noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Thus, based on the circumstances of the Veteran's service as an infantryman, and resolving any doubt in his favor, hazardous noise exposure is established. 38 U.S.C.A. § 1154(a); see also 38 C.F.R. § 3.102. While hazardous noise exposure has been established, the evidence must still show that the Veteran's current hearing loss disability and tinnitus are related to such exposure or otherwise related to service. The Veteran's service treatment records do not reflect clinical findings or complaints of hearing loss or tinnitus, and the Veteran has not stated that he was ever treated for or diagnosed with hearing loss or tinnitus during service. However, a comparison of the Veteran's entrance and separation audiograms suggests that he may have sustained some hearing loss during active service, at least in the left ear. Specifically, the September 1969 entrance examination shows puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 15 10 LEFT 5 0 5 15 5 These puretone thresholds show normal hearing at entrance. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159. (The results of any speech recognition testing were not recorded.) The March 1971 separation examination report reflects that the Veteran's hearing was clinically evaluated as normal. However, the report includes an audiogram showing some hearing loss in the left ear, as well as higher puretone thresholds in the right ear when compared with his entrance audiogram: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (15) 5 (15) 5 (15) -5 LEFT 10 (25) 0 (10) 5 (15) 20 (30) 10 (15) (The results of any speech recognition testing were not recorded in this examination report.) Significantly, a notation by the audiogram indicates that the puretone thresholds were recorded using American Standards Association (ASA) units. However, most audiometric findings since the late 1960's are recorded in units that have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO-ANSI units. Thus, the puretone thresholds in the above separation audiogram have been converted from ASA to ISO units. This means adding to the reported findings 15 decibels at the 500 dB level, 10 decibels at the 1000, 2000, and 3000 dB levels, and 5 decibels at the 4000 dB level. In order to facilitate data comparison, the original ASA units are retained and their conversion to ISO-ANSI units is represented by the figures in parentheses. As converted, the Veteran's right ear puretone thresholds at separation from service were still considered normal by VA standards. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159 (holding that the threshold for normal hearing is from 0 to 20 decibels). However, it shows some hearing loss in the left ear at 3000 Hertz, as the Veteran's puretone threshold at this frequency exceeded 25 decibels. See Hensley, 5 Vet. App. at 157, 159. The audiogram also shows that the Veteran's puretone thresholds increased from 5 decibels to 20 decibels at 500 Hertz, and from 5 to 15 decibels at 1000 Hertz, when compared to his entrance audiogram. In this regard, the entrance audiogram does not indicate that the puretone thresholds were recorded using ASA units, and service department audiometric readings after October 31, 1967 were generally based on ISO-ANSI units. Thus, the Board assumes that the entrance puretone thresholds were recorded using the current standard. The fact that the Veteran's separation examination does not show a hearing loss disability at the time, and indeed shows normal hearing in the right ear, does not preclude a relationship between the Veteran's current hearing loss disability and in-service noise exposure. In this regard, the Court held in Hensley, 5 Vet. App. at 159, that hearing shown to be within normal limits at separation does not preclude service connection for a current hearing loss disability. In making this determination, all the evidence of record, including the Veteran's puretone threshold shifts during active service, must be considered. See id. at 163-64. However, there must still be evidence that "the current [hearing loss] disability is causally related to service." Id. at 160. The earliest post-service clinical evidence of hearing loss is a November 2009 VA examination report reflecting puretone thresholds that meet the definition of a hearing loss disability. However, the Veteran stated in his September 2009 application for service connection and at the May 2012 hearing that he had been treated for hearing loss and tinnitus in September 1971 and August 1974. Thus, according to the Veteran's statements, he was first treated for hearing loss and tinnitus about three months after separation from service, although he denied experiencing hearing loss or tinnitus during active service at the Board hearing. Competent and probative evidence in the form of opinions by the Veteran's private treating physician supports a nexus between the Veteran's bilateral hearing loss disability and tinnitus and his in-service noise exposure. Specifically, in a September 2009 private treatment record authored by G. Jacewicz, M.D., the Veteran's treating ear, nose, and throat doctor, it was noted that the Veteran had a history of noise exposure to "guns in the military" and that his tinnitus started after 1972. He described it as a high tone with an occasional pulsating sound. His tinnitus had recently increased in severity. After examining the Veteran, Dr. Jacewicz opined that the Veteran's tinnitus and hearing loss were most likely related to noise exposure. In a December 2009 private treatment record, Dr. Jacewicz stated that the only history of noise exposure reported by the Veteran was during active service, and that the Veteran's hearing loss configuration was typical for noise-induced hearing loss. The physician further noted that hearing loss related to noise exposure is often not registered at first in the lower frequencies and so younger people usually do not seek treatment immediately after discharge from service. Moreover, Dr. Jacewicz observed that tinnitus due to noise exposure often does not start until years after the noise damage. The physician concluded that the Veteran would not currently have hearing problems absent the history of noise exposure, and "[o]nly the hearing test on discharge from the service can prove no relationship." At the November 2009 VA examination, the Veteran reported military noise exposure from explosives, rifles, and machine guns. He denied occupational or recreational noise exposure. He had a negative history for head injury, dizziness, or family history of hearing loss. After reviewing the claims file and examining the Veteran, the examiner concluded that it was less likely as not that the Veteran's hearing loss and tinnitus were related to military noise exposure as his discharge audiogram showed hearing within normal limits in both ears from 500 to 6000 Hertz. The examiner further opined that the Veteran's tinnitus was more likely than not related to "the cochlear pathology of the hearing loss," and thus less likely than not related to military noise exposure. The probative value of the November 2009 VA examiner's opinion must be discounted to the extent it relies solely on normal hearing at separation, as the Veteran's separation audiogram, when converted, does show some hearing loss in the left ear at 3000 Hertz, as discussed above, although it was not severe enough to be considered disabling at the time. The June 2011 VA examiner, who reviewed the claims file and examined the Veteran, also opined that the Veteran's hearing loss and tinnitus were less likely as not related to military noise exposure. The examiner explained in this regard that the Veteran's entrance and separation audiograms showed normal hearing based on his recorded puretone thresholds, and that there was no evidence of significant puretone threshold shifts between entrance and discharge. The examiner noted Dr. Jacewicz opinion, but disagreed with it, stating that Dr. Jacewicz did not have access to the service treatment records and had indicated that "only the hearing test on discharge from the service can prove no relationship." It was based on the Veteran's normal hearing at discharge, and the fact that there was no significant puretone threshold shift between entrance and separation, that the examiner concluded that the Veteran's hearing loss and tinnitus were less likely as not related to service. Again, the Board must discount the weight of this opinion to some extent, as the Veteran's separation audiogram, when converted from ASA to ISO-ANSI units, does show some hearing loss in the left ear, as explained above. While it is beyond the Board's competence to determine whether there was a significant threshold shift between entrance and separation from service, the converted audiogram shows a greater difference in the puretone thresholds than those considered by the examiner, which were based on the pre-converted puretone thresholds at separation. In an April 2012 letter, Dr. Jacewicz reiterated his positive nexus opinion, stating that the Veteran's recent audiogram revealed hearing loss in a configuration typical of noise-induced hearing loss. The Veteran's tinnitus was also "matched to 4000 Hertz, precisely in the area of most of the noise damage." Thus, Dr. Jacewicz concluded that only military noise exposure could account for the Veteran's hearing loss and tinnitus as he had no history of other medical conditions affecting his hearing. The balance of the evidence discussed above supports a relationship between the Veteran's current hearing loss disability and tinnitus and in-service noise exposure. Although Dr. Jacewicz suggested in the December 2009 private treatment record that normal testing at separation from service would prove no relationship to in-service noise exposure, his opinion was mostly based on the fact that the Veteran's hearing loss configuration as shown in recent audiometric testing results, as well as his tinnitus, followed the pattern of noise-induced hearing loss, and the physician could find no other cause or etiology of these disorders. Thus, as the Veteran has denied post-service noise exposure, Dr. Jacewicz concluded that only in-service noise exposure was the cause of the Veteran's hearing loss and tinnitus. In other words, his opinion did not necessarily turn on whether the Veteran's separation test results were normal. As discussed above, while the VA examiners found it unlikely that the Veteran's tinnitus and hearing loss were related to service based on the normal audiometric results at separation, the weight of this conclusion must be discounted somewhat given the fact that some hearing loss in the Veteran's left ear is shown at discharge when the separation audiogram is converted from ASA to ISO-ANSI units. In sum, the competent evidence both in favor of and against a relationship between the in-service noise exposure and the Veteran's bilateral hearing loss disability and tinnitus is in relative equipoise. Accordingly, reasonable doubt is resolved in the Veteran's favor under the benefit-of-the-doubt rule, and entitlement to service connection for a bilateral hearing loss disability and tinnitus is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs