Citation Nr: 1314845	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  10-13 651	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Juliano, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1961 to September 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Denver, Colorado.

In May 2010, the Veteran requested a Board hearing, but did not specify whether he wanted a central office, local RO, or videoconference hearing.  See also Form 646, November 2012.  In December 2012, the Board sent a letter to the Veteran requesting clarification, and the Veteran replied in February 2013 that he did not wish to have a Board hearing.  Based thereon, the Board finds that the Veteran's request for a Board hearing has been withdrawn.


FINDINGS OF FACT

1.  The Veteran has bilateral hearing loss that is etiologically related to a disease, injury, or event in service.

2.  The Veteran has tinnitus that is etiologically related to a disease, injury, or event in service.



CONCLUSIONS OF LAW

1.  Bilateral hearing loss was incurred in active service.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.385 (2012).

1.  Tinnitus was incurred in active service.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.102, 3.303 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran's claims for service connection for bilateral hearing loss and tinnitus are being granted herein, as discussed below.  As such, the Board finds that any error related to the VCAA is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 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 Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that 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 veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  Id.

To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for organic diseases of the nervous system, such as sensorineural hearing loss, may additionally 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. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012).

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purpose of service connection.  38 C.F.R. § 3.385 (2012).  "[I]mpaired 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."  See id.

The Veteran served on active duty in the Navy from September 1961 to September 1963.  He claims that he has bilateral hearing loss and tinnitus as a result of excessive noise exposure from 5-inch 38-caliber turrets on his ship.  He has reported experiencing tinnitus in service, and most persistently since around 2007.  See VA Examination Report, June 2009.

As an initial matter, the Board notes that the Veteran's service records do not establish any service in the Republic of Vietnam, nor has the Veteran alleged any combat service.  His DD Form 214 reflects that his military occupational specialty was that of a deck hand.  While the Board acknowledges that his service records do not confirm any specific instance of acoustic trauma, in light of the fact that they confirm that he served as a deck hand aboard the USS Kidd and the USS Rich, both naval destroyers, as a deck hand, and in light of his reports of working with 5-inch 38-caliber turrets on his ship, excessive noise exposure is conceded in this particular case.

The Veteran's March 1961, May 1961, and September 1961 enlistment examination reports all reflect that whispered and spoken voices were 15/15 feet.  

His August 1963 separation examination report reflects that pure tone thresholds (having converted ASA to ISO) were as follows:



Hertz (decibels)

500
1000
2000
3000
4000
6000
RIGHT
15
10
10
10
5
25
LEFT
15
10
10
10
5
10

Post-service, the Board acknowledges that the Veteran's VA treatment records are negative for any complaints of hearing loss or tinnitus.

The Veteran was provided with a VA audiological examination in June 2009.  The examiner noted the Veteran's history of noise exposure in service with 5-inch, 38-caliber turrets on a naval ship, and that he denied any recreational noise exposure.  He reported experiencing difficulty hearing on the telephone and in groups.   The Veteran also reported a history of tinnitus symptoms in service, which went away, and then later came back again, most persistently in the last two years, and that it was interfering with his sleep.  Audiometric testing revealed pure tone thresholds as follows:



Hertz (decibels)

500
1000
2000
3000
4000
Avg.
RIGHT
15
25
40
65
65
48.75
LEFT
15
15
35
45
60
38.75

Speech recognition scores using Maryland CNC word lists were 100 percent bilaterally.  The examiner recorded diagnoses of bilateral sensorineural hearing loss, normal to severe, and tinnitus.  

As shown above, the June 2009 VA examination report shows that the Veteran's auditory thresholds exceed 40 decibels in at least one frequency between 500 and 4000 bilaterally.  Therefore, the Board finds that the criteria for a hearing loss disability has been met for VA purposes bilaterally.  See 38 C.F.R. § 3.385 (2012).

The June 2009 VA examiner opined that it was less likely as not that the Veteran's hearing loss was related to service, reasoning that the Veteran's separation examination revealed normal hearing.  With regard to the Veteran's tinnitus, the examiner noted that he could not provide an opinion without resorting to mere speculation because the Veteran reported that his symptoms went away until two to three years ago.

In light of the Court's holding in Hensley that service connection may still be established even if audiometric test results at the time of separation from service do not meet the regulatory requirements for establishing a "disability" for VA purposes, and because the June 2009 VA examiner was unable to provide an opinion regarding the Veteran's tinnitus without resorting to mere speculation (without further explanation), the Board acknowledges that the June 2009 VA examiner's etiological opinions were inadequate.  Therefore, in February 2013, the Board requested a VHA medical opinion to address the Veteran's claims.

A March 2013 VHA medical opinion from Dr. J.J., a VA otolaryngologist, reflects that he reviewed the claims file and opined that the Veteran's diagnosed bilateral sensorineural high-frequency hearing loss is at least as likely as not related to his noise exposure in service.  He further opined that "the same can be said for his tinnitus because of its intimate association with sensorineural hearing loss," and explained it is therefore at least as likely as not related to his military noise exposure.  With regard to the Veteran's hearing loss, the examiner reasoned that true sensorineural hearing loss is the result of the loss of damage to the hair cells in the cochlea, and that these hair cells can also be damaged by aging (prebycusis).  Dr. J.J. further reasoned that recently, a series of papers by S.K. at the department of audiology Massachusetts Eye and Ear Infirmary seem to show that even in the presence of a "fully" recovered temporary threshold shift (TTS), hair cells in the cochlea are damaged, and as we age, hair cells are also damaged, such that if the backup hair cells are not there, then the individual will experience greater hearing loss faster and possibly at an earlier age.  With regard to the Veteran's tinnitus, Dr. J.J. noted that the Veteran's tinnitus was subjective, and therefore could only be heard by him.  Dr. J.J. further explained that 75 percent of all tinnitus sufferers have at least a 30 decibel high frequency hearing loss, and that the committee on noise-induced hearing loss and tinnitus associated with military service from World War II to the present concluded in the book Noise and Military Service that hearing loss greater than 25 decibels at one or more of the frequencies between 250 and 8000 hertz is associated with a higher prevalence of tinnitus. The examiner added that tinnitus can be associated with short duration high energy sounds as seen in weapons firing and explosions.  In conclusion, the otolaryngologist indicated that the Veteran currently has sensorineural hearing loss which could be the result of presbycusis or noise-induced hearing loss or both.  In light of the recent data suggesting that even in the presence of temporary shifts a significant number of hair cells are damaged such that the individual's resistance to presbycusis would be decreased, the noise exposure during military service at least as likely as not caused or significantly impacted the current hearing loss.  In essence, the physician opined that since the current hearing loss could be due to several causes it was at least as likely as not that noise exposure in the military caused or contributed to cause current hearing loss.  The physician also indicted that the same could be said for tinnitus due to its intimate association with sensorineural hearing loss and as it can be associated with short duration high energy sounds as seen with weapons firing and explosions.  Accordingly, he found it was at least as likely as not due to military noise exposure.

In light of the above, particularly the February 2013 VHA medical opinion (and having found the prior June 2009 VA examiner's etiological opinion to be inadequate), the Board finds the evidence shows that the Veteran has bilateral hearing loss and tinnitus that are related to his conceded in-service excessive noise exposure.  As shown above, the Veteran's auditory thresholds on VA examination in June 2009 met the VA regulatory criteria for a current hearing loss disability, and a diagnosis of tinnitus was also recorded based on the Veteran's reported symptomatology.  The Board notes that the Veteran, as a lay person, is competent to report experiencing tinnitus.  See Charles v. Principi, 16 Vet. App. 370 (2002).  Having found the June 2009 VA examiner's etiological opinion to be not adequate, however, the only medical opinion of record with regard to whether the Veteran's current hearing loss and tinnitus disabilities are related to service is the March 2013 VHA medical opinion linking the Veteran's hearing loss and tinnitus to his in-service noise exposure.

In summary, for the reasons explained above, the Board finds that the competent and probative evidence supports the Veteran's claims for service connection for bilateral hearing loss and tinnitus.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.



______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs