Citation Nr: 1314293 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-24 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from August 1964 until August 1968. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2008 and October 2008 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. The Veteran has been shown to currently have bilateral hearing loss that is related to his military service. 2. The Veteran has been shown to currently have tinnitus that is related to his military service. CONCLUSION OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. . Resolving all reasonable doubt in favor of the Veteran, tinnitus was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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). In the present case, the RO sent notice letters to the Veteran dated in November 2007 and September 2008. The record also includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, reports of VA examinations, and lay statements. The Board has considered whether any further notice or development is necessary. However, in the decision below, the Board has granted the benefits sought on appeal in full. Thus, further notice and development could not result in a more favorable result for the Veteran or be of assistance to this inquiry. Hence, no further notice or assistance is required, as there is no harm or prejudice to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for hearing loss and tinnitus. Having carefully considered the claims in light of the record and the applicable law, the Board finds that the evidence is at an approximate balance, and the claims will be granted. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (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 a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. For these conditions, service connection may be granted if the chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 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, or 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 absence of in-service 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. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran was afforded a VA examination in March 2008. This examination demonstrated hearing acuity over 40 decibels in the 3000 and 4000 hertz thresholds bilaterally. Thus, the Veteran clearly has a current disability in accordance with 38 C.F.R. § 3.385. The March 2008 examination also noted the presence of tinnitus. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. The Veteran's service treatment records do not reflect any complaints, treatment or diagnoses related to hearing loss or tinnitus. In fact, the May 1968 examination conducted in connection with the Veteran's separation reflected hearing within normal limits. The Veteran, however, has presented statements alleging exposure to noise exposure while serving as an automobile repairman in the military. In a December 2009, statement the Veteran described noise from pneumatic tools, hammering, loud engines, and other noises related to his duties as a mechanic. He also explained he was required to work near a runway during his time in Korea and was exposed to aircraft engine noise. In his substantive appeal, the Veteran reiterated that he was exposed to noise from air tool usage, hammering, chiseling, engines, tire noise from the chassis dynamometer, and small arms fire during training exercises. He described working near a runway during his tour in Korea, reported an incident when he was air lifted out for an unrelated injury, and explained that, while the helicopter crew had hearing protection, he was not provided any such protection. The Veteran is competent to describe the symptoms he has experienced and the noises he heard during service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Furthermore, the Board finds the Veteran's testimony to be credible, as his description of symptoms has been consistent throughout the record, and his Form DD 214 corroborates his service in the Air Force with a military occupational specialty of automobile repairman. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The final element is competent evidence of a nexus between the Veteran's current hearing loss and tinnitus and his noise exposure during service. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). However, as noted above, in certain cases, competent lay evidence may satisfy any of the required elements. "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran was afforded a VA examination in March 2008 to determine the nature and etiology of the claimed hearing loss and tinnitus. The examiner noted the Veteran's history of noise exposure in the Air Force and observed that the Veteran was a diesel mechanic and foreman after service. The Veteran indicated that he always had ear protectors following his period of service. After reviewing the record and considering the Veteran's complaints, the examiner opined that it was not likely that the Veteran's hearing loss was the result of his military noise exposure. In so doing, he noted that the May 1968 separation physical indicated normal audiometric thresholds. Concerning the tinnitus, the examiner noted there was no complaint of tinnitus in the service treatment records, that the Veteran could not recall when tinnitus began, and that the hearing test at separation did not support a diagnosis of tinnitus. Therefore, the examiner opined that it was not likely that the Veteran's tinnitus was related to his military noise exposure. The Veteran provided a June 2008 letter from a private audiologist. The audiologist indicated that the Veteran was exposed to auto engine noise and pneumatic tools in the military and fired small weapons in training. He also reported hearing loss and constant bilateral tinnitus. The impression was difficulty understanding speech, and the audiologist concluded it was most likely that the Veteran's hearing loss and tinnitus are related to exposure to excessive noise in the military. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to obtain a more definitive opinion with a full rationale to reconcile the conflicting medical evidence and to provide an opinion as to the relationship between the Veteran's symptoms to the noise exposure during service. However, under the law, 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). In this case, there is a VA examination report that provided a negative opinion based mainly on the fact that the Veteran had normal hearing at the time of his separation from service. However, in Hensley v. Brown, the Court explained that the failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. 5 Vet. App. 155, 159-60 (1993). In other words, a claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Id.; see 38 C.F.R. § 3.303(d). On the other hand, there is a June 2008 opinion of a private audiologist who indicated that it was most likely the hearing loss and tinnitus were caused by service. The private audiologist, however, failed to provide a full rationale for his opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Although the private opinion did not include a rationale for his conclusion, the Board notes that the report reflects the audiologist was well-informed of the Veteran's history of noise exposure, and the opinion was not equivocal in nature. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); see e.g., Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that the Board was correct to express doubts as to the sufficiency of a physician's statement that the Veteran "may" have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis and not approve a claim on such a speculative opinion). Accordingly, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Board finds that this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, giving the Veteran the benefit of the doubt, service connection for hearing loss and tinnitus is granted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs