Citation Nr: 1313441 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-46 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and B.M. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1944 to March 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is currently with the RO in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a December 2012 video conference hearing. A transcript of this hearing is of record and has been reviewed. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the December 2012 hearing, the undersigned fully explained the issues involved. While the undersigned did not specifically suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice, as the case was remanded in January 2013 to obtain additional evidence. Additionally, the Board is granting both service connection issues on appeal in this decision. Therefore, to the extent that the undersigned did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. In January 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional medical records and to afford the Veteran a VA medical examination. The action specified in the January 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 Veteran's current bilateral hearing loss is of service origin. 2. The Veteran's tinnitus is of service origin. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. 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. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2012). 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus, which he attributes to acoustic trauma in service related to his military occupational specialty (MOS) as an aviation support equipment technician (designated by rating AS). On September 10, 2010, the Veterans Benefits Administration (VBA) issued Fast Letter (FL) 10-35: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. The purpose of the letter was to "introduce the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. Use of a single listing of duty position and probability of exposure to hazardous noise will help to standardize processing of these claims. "If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the veteran's records, each duty MOS, Air Force Specialty Code, rating, or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event." According to these lists, it is highly probable that an aviation support equipment operator is exposed to hazardous noise. Accordingly, it is conceded that the Veteran had in-service exposure to hazardous noise. Additionally, the Board notes that the Veteran provided testimony at his December 2012 videoconference hearing placing onset of his hearing problems and tinnitus in service. The Veteran's stepdaughter also testified that she had known the Veteran for more than forty years and the Veteran has always had difficulty hearing during this period. However, the Veteran's service treatment records are negative for complaints of or treatment for hearing loss or tinnitus. At his separation examination in March 1946, the Veteran was administered whispered voice and spoken voice tests, on which he scored a 15/15 bilaterally. The Veteran's ears were clinically evaluated as normal at that time. The Veteran did not complete a Report of Medical History at his discharge. Post-service, there is no evidence of any complaint, treatment, or related to hearing loss or tinnitus within one year of service or for decades after separation from service in either the Veteran's VA treatment records or private medical records. At the time of his Board hearing, the Veteran provided a somewhat confusing account of his past treatment for hearing loss and tinnitus. He indicated he had received private audiological testing in 2008 or 2009, but failed to respond to requests from the RO to identify the private audiologist or provide a signed release to obtain treatment records. In December 2012, the Veteran did submit a copy of an audiogram with a handwritten date of October 16, 2012, but it is unclear whether this is a VA or private treatment record or whether it is the audiological testing the Veteran was referring to. The Veteran was afforded a VA audiological examination in January 2013. This examination showed that the Veteran had a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 (2012). The VA examiner concluded that it is at least as likely as not that the Veteran's tinnitus is the result of military noise exposure. She noted that the Veteran reported onset of tinnitus beginning in 1945 and that noise exposure such as the Veteran experienced in service is associated with the development of tinnitus. However, the examiner concluded that she was unable to determine whether the Veteran's bilateral hearing is the result of military noise exposure without resorting to speculation. She stated that the Veteran's hearing was tested in service using a whispered voice test, which is known to be an unreliable method of testing because it is insensitive to high frequency hearing loss. She indicated that without audiometric information, she was unable to determine if a significant change in hearing acuity was noted during military service, and without such information, she was unable to render an opinion concerning the etiology of the Veteran's hearing loss. The Board notes that in Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims held that when a medical examiner concludes that a medical opinion can only be obtained by resorting to speculation, that opinion will be considered inadequate to resolve the issue of service connection. Furthermore, it appears that the VA examiner failed to consider the Veteran's lay statements placing onset of his hearing problems in service. Based on the above evidence, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus should be granted. On one hand, the absence of any complaints of or treatment for tinnitus or hearing loss in service or for decades after service weighs against the Veteran's claims. However, the Veteran did have significant hazardous noise exposure in service, there is no evidence of any post-service noise exposure, and the Veteran has testified that his disability had onset in service and continued to worsen since that time. The Board notes that the Veteran is competent to testify concerning observable physical symptoms, such as ringing in his ears or a subjective decrease in hearing acuity. See Charles v. Principi, 16 Vet. App. 370 (2002) (regarding lay testimony of tinnitus); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). Furthermore, even if the Veteran's hearing loss was not present during service or within the first post-service year, service connection may still be established if a claimant currently satisfies the criteria of 38 C.F.R. § 3.385, and the evidence links current hearing loss with service. 38 C.F.R. § 3.303(d); see also Hensley, 5 Vet. App. at 158-60. The VA examiner concluded that the Veteran's tinnitus was at least as likely as not caused by his in-service noise exposure, providing further evidence in support of that claim. Unfortunately, the VA examiner's opinion regarding the etiology of the Veteran's current bilateral hearing loss disability is inadequate to resolve the issue of service connection. The Board has considered whether a remand for a new VA examination is warranted; however, as exposure to acoustic trauma has been conceded and the Board determines that the Veteran's lay testimony that his hearing loss had onset in service is credible as is the testimony of the Veteran's stepdaughter attesting to observation of the Veteran's hearing loss for the past 40 years, the Board finds that entitlement to service connection for bilateral hearing loss can be granted based on credible lay evidence of in-service incurrence and continuity of symptomatology. For all the above reasons, entitlement to service connection for bilateral hearing loss and tinnitus are granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any 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. (Continued on the Next Page) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs