Citation Nr: 1314817	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  09-15 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from March 1966 to March 1968, including honorable service in the Republic of Vietnam. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefit sought on appeal. 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.


FINDINGS OF FACT

1.  There is an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability that was incurred in service.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran has bilateral tinnitus that was incurred in service.


CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Resolving doubt in favor of the Veteran, tinnitus was incurred in active duty military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012).  In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Legal Criteria

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).  

Service connection may be awarded for certain chronic diseases based on a continuity of symptomatology since service.  38 C.F.R. § 3.303(b).  A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Organic diseases of the nervous system such as tinnitus is arguably a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service.  38 C.F.R. § 3.307.  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances 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 v. Brown, supra.

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).  

Factual Background and Analysis

The Veteran contends that he experienced acoustic trauma in service, and has experienced hearing loss and tinnitus ever since.  The Veteran's service personnel records reflect that his military occupational specialty was a field artillery crewman.  

On July 1965 service entrance physical examination, a clinical evaluation of the Veteran's ears was normal.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-10
-10
-10
X
+5
LEFT
+5
0
+5
X
+5

On March 1968 service separation physical examination, a clinical evaluation of the Veteran's ears was normal.  Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
-5
15
X
-5
LEFT
5
10
-10
X
15

The Veteran indicated on a March 1968 Report of Medical History that he did not experience any ear trouble.

Following service, it appears that the Veteran first reported being "hard of hearing" during a 2008 VA treatment.  He underwent an audiological consult in April 2008, during which he reported bilateral hearing loss and bilateral tinnitus.  He described being exposed to artillery noise during his 2 years of active duty and without hearing protection.  Following service, he worked in a feed mill for 40 years, without hearing protection.  Puretone tests revealed mild to moderately severe sensorineural hearing loss in the bilateral ears.  Word recognition testing revealed 72 percent in the right ear, and 80 percent in the left ear.  

In a March 2008 statement to VA, the Veteran indicated that during service he fired 105mm Howitzers without the use of hearing protection.  He indicates that he has experienced problems since leaving the service.  The Veteran believes that the in-service Howitzer noise caused hearing damage.  He also indicates that he experiences current, intermittent tinnitus that has been occurring since service.  

In August 2008, the Veteran was afforded a VA audiological examination, during which puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
50
55
65
70
LEFT
35
50
55
60
60

Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 82 percent in the left ear.  

The Veteran again described that his bilateral hearing loss and tinnitus began in service and have continued since.  The examiner noted the Veteran's in-service history of normal hearing and no hearing loss/tinnitus complaints during service.  Following review of the claims file and interview/examination of the Veteran, the audiologist diagnosed stable, symmetric sensorineural hearing loss with reduced word understanding bilaterally.  He opined that the Veteran bilateral hearing loss is unrelated to acoustic trauma in service because the Veteran had normal hearing at service separation and hearing loss due to acoustic trauma or high noise exposure usually occurs at the time of the incident and not a delayed onset.  He opined that the Veteran's tinnitus is secondary to his bilateral hearing loss.  

The Veteran submitted a March 2009 letter from his treating physician indicating that it is possible that the Veteran's acoustic trauma during service caused or contributed to his hearing loss.  The physician, however, noted that he was unable to opine with certainty.  

As an initial matter, the August 2008 audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2012).

Therefore, the question to be decided in the present appeal is whether such hearing loss and tinnitus are associated with the Veteran's active duty.  With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma from the sounds of Howitzers and rifles while performing duties of his military occupational specialty as a field artillery crewman.  Significantly, the Veteran's personnel records confirm that he was field artillery crewman, and was stationed at one time in Republic of Vietnam.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service.  Thus, the Board does not dispute that he likely experienced acoustic trauma during service.

With respect to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and tinnitus and his military service, the Board acknowledges that the August 2008 VA examiner stated that the Veteran's hearing loss was unrelated to his acoustic trauma during service and likely had its onset after service.  However, the examiner did not fully discuss the Veteran's conceded exposure to hazardous noise during his active duty service.  As the August 2008 VA examiner did not fully discuss the Veteran's history, his opinion is at least balanced by the Veteran's credible statements.  

The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing and symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  

As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his bilateral ears, and the Board finds that his assertions are credible.  Specifically, the Veteran is competent to report symptoms of tinnitus such as ringing or buzzing in the ears continuously since service. The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service which caused ringing in his ears, has continued to experience ringing in his ears since then, and now has a diagnosis of tinnitus.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v. Gober, 10 Vet. App. 488, 495-98   (1997). Continuity of symptomatology is, therefore, established for tinnitus.  See 38 C.F.R. § 3.303(b).

Additionally, the August 2008 VA audiologist associated the Veteran's tinnitus with his bilateral hearing loss.  After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability and tinnitus cannot be disassociated from each other or his in-service exposure to acoustic trauma.  Thus, the medical and lay evidence for the claims and the evidence against the claims are at least in equipoise.  Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs