Citation Nr: 1314059 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 09-41 401 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's current bilateral hearing loss began during or resulted from service. 2. The Veteran currently has tinnitus that began during or resulted from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 & Supp. 2011); 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. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also 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). Certain chronic diseases, such as sensorineural hearing loss, will be presumed to have been incurred in service if it became manifest to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in his October 2009 substantive appeal, the Veteran asserts that he developed hearing loss and tinnitus as the result of noise exposure as a Field Artillery Fire Control Man in Vietnam, where his duties included plotting the path of shells and adjusting coordinates, and where he was close enough to artillery blasts to feel the concussion blast when the guns would go off. He also asserts that he developed ringing and buzzing in his ears in service, and that during service he was treated for malaria with quinine, which contributed to his tinnitus. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claims must be granted. Service treatment records reflect that, at the time of examination for entry into service in December 1965, an audiogram showed that hearing, in decibels, for the frequency of 4000 Hertz was measured as 5 in the right ear, and 25 in the left ear. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Converted from ASA units to ISO units, hearing, in decibels, for the frequency of 4000 Hertz was measured as 35 in the left ear. Thus, at this frequency, hearing was not within normal limits under VA regulations. See 38 C.F.R. § 3.385. However, at the time of the Veteran's January 1968 examination for separation from service, while he was noted to have had a normal whispered voice test in each ear, no audiological evaluation was performed, and service treatment records contain no other audiological findings. Also, July 1966 VA records reflect treatment for malaria with quinine. The Veteran's DD Form 214 (Report of Transfer or Discharge) reflects that the Veteran's military occupational specialty (MOS) was as a Field Artillery Fire Control Man, and that he served in the Republic of Vietnam, with over a year and a month of foreign and/or sea service. Given the Veteran's MOS, the Board finds his assertions of in-service exposure to very loud noise to be credible. March 2008 VA treatment records reflect that the Veteran reported a significant history of noise exposure through military and social/recreational noise exposure. The Veteran stated that his exposure involved an explosion on his left side, and that he felt that the right ear was better than the left. He further reported the presence of tinnitus, only in quiet situations. He reported no occupational noise exposure as a truck driver. The diagnosis was mild sloping to severe sensorineural hearing loss, bilaterally, left slightly worse than right, with history of explosives on the left side. In the report of an August 2008 VA audiological examination, it was noted that no pure tone hearing tests were performed at the Veteran's discharge, that service treatment records were negative for symptoms of tinnitus, and that the Veteran had been treated for malaria in September 1966, which included quinine. At the time, the Veteran reported military noise exposure from weapons training, small arms fire, incoming artillery, and mortar fire. He reported that he once passed in front of a 105 as it fired and he was caught in the muzzle blast. He also reported post-service work of approximately two years of light construction, seven years of farming, and over 10 years of road truck driving. Other noise exposure was from intermittent hunting, chain saw use, and motor cycle use. The Veteran also dated the onset of tinnitus from exposure in service that occurred when he was passing in front of a 105 howitzer as it fired. He reported that he did not go to sick call at the time, but rather worked through the shock. Pure tone threshold examination revealed that hearing, in decibels, for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz was measured as 15, 15, 30, 35, and 55 in the right ear, and 15, 20, 45, 65, and 65 in the left ear. Speech recognition scores using the Maryland CNC Test were 94 percent in each ear. Thus, the evidence reflects a current hearing loss disability for the purposes of 38 C.F.R. § 3.385. The VA examiner diagnosed bilateral asymmetrical sensorineural hearing loss, and opined that he could not resolve the issue of whether hearing loss or tinnitus was related to service without resort to mere speculation. The examiner explained that there was insufficient data, as the Veteran may have had sufficient exposure in service to cause some degree of hearing impairment or tinnitus, but that this was a matter of speculation, as post-service exposures and age could account for the current impairment and symptoms. The Veteran also submitted several articles indicating that side effects of quinine use include tinnitus and decreased auditory acuity. Thus, the record reflects current bilateral hearing loss and tinnitus disabilities. While abnormal hearing at the frequency of 4000 Hertz was noted in the left ear at the time of the Veteran's entry into service, service treatment records do not contain any further audiological findings, including at the time of separation from service, and, as noted above, given the Veteran's MOS, the Board finds the Veteran's assertions of constant in-service exposure to very loud noise to be credible. Also, the record reflects that the Veteran was treated for malaria with quinine, the side effects of which include tinnitus and decreased auditory acuity. Furthermore, while tinnitus was not noted in service, the Veteran at no point during or after service reported that he did not have tinnitus or otherwise gave any statement contradicting his assertion that tinnitus has existed since service. In this regard, the Veteran's assertion that tinnitus began after a particularly loud blast on his left side in service is consistent with current findings that hearing in the left ear is worse than that in the right ear. While the August 2008 VA examiner opined that he could not resolve the issue of whether hearing loss or tinnitus was related to service without resort to mere speculation, and noted that post-service exposures and age could account for the current impairment and symptoms, the examiner did not opine that it was less likely than not that the Veteran's hearing problems were related to his service, and he conceded that the Veteran may have had sufficient exposure in service to cause some degree of hearing impairment or tinnitus. Moreover, the VA examiner appears not to have taken into consideration the Veteran's use of quinine in service as a possible source of either tinnitus or hearing impairment; the articles submitted by the Veteran regarding the relationship between quinine and tinnitus and hearing impairment were not of record at the time of the August 2008 VA examination, and no such relationship was acknowledged by the examiner. This diminishes the probative weight of the examiner's report as evidence against the Veteran's claims. Given the above, the Board finds that the evidence pertaining to whether the Veteran's current hearing loss and tinnitus began during or resulted from service is at least in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that his current hearing loss and tinnitus began during or resulted from service. Accordingly, the Board finds that the claims for service connection for bilateral hearing loss and tinnitus must be granted. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Mark W. Greenstreet Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs