Citation Nr: 1314868 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 12-01 789 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had service from February 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran appealed this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran is a combat veteran and was exposed to acoustic trauma in service. 2. The Veteran has provided credible lay evidence of continuity of hearing loss symptoms in service and since service. 3. The Veteran's bilateral hearing loss was incurred in service. 4. The Veteran has provided credible lay evidence of in-service onset of tinnitus and unremitting tinnitus since service. 5. The Veteran's tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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); 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, because the benefits sought are granted, 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 need not be further considered. Entitlement to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, bilateral sensorineural hearing loss, is an organic disease of the nervous system and is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) and thus, as discussed in further detail below, 38 C.F.R. § 3.303(b) does not apply to that portion of the Veteran's claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, 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 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). The Veteran's service records confirm receipt of decorations including the Vietnam Service Medal with one Bronze Star, Vietnam Campaign Medal, and Expert (M-16) recognition. Additionally, personnel records show that the Veteran took part in at least one "unnamed campaign" in December 1970. Service connection has been granted for posttraumatic stress disorder on the basis of service in Vietnam as a machine gunner. Based on the foregoing, the Board finds that the Veteran is a combat veteran for VA purposes. Pursuant to 38 U.S.C.A. § 1154(b) with respect to combat veterans, VA shall accept as sufficient proof of service-connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service- connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); See also 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). Bilateral Hearing Loss and Tinnitus Here, the Veteran is claiming entitlement to service connection for hearing loss and tinnitus. For the purposes of this claim, the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 (2012). On enlistment examination in September 1969 the Veteran's ears and ear drums were normal. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 -10 -5 0 10 LEFT -5 -5 -5 0 15 He endorsed "ear, nose or throat" trouble but affirmatively denied running ears and hearing loss. Audiological evaluation in February 1971 showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 RIGHT 30 35 30 35 LEFT 25 20 15 35 The ear canals and tympanic membranes were normal and the Veteran's hearing was described as normal bilaterally. On separation examination in October 1971, ears and ear drums were normal. Audiological evaluation showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 RIGHT 15 25 15 15 LEFT 15 15 15 15 The Veteran affirmatively denied any ear trouble or running ears. The Veteran separated from service in December 1971, and in February 2010 he submitted a claim of entitlement to service connection for bilateral hearing loss. In a March 2010 statement, the Veteran indicated that while in Vietnam he fired an M-16 rifle and developed severe pain in his ears with a ringing sound that continues to this day. The Veteran also endorsed an event during basic training where a grenade was dropped just over the side of a concrete wall behind which he was taking cover. When the grenade exploded the Veteran experienced an intense ringing in his ears. In April 2010, the Veteran again stated that during basic training there was an event in which a grenade fell after its pin had been pulled. A drill sergeant kicked the grenade into a near-by hole and the device exploded. The Veteran experienced a temporary total hearing loss, followed by a hissing and ringing sound that did not subside but became worse during deployment in Vietnam. While in Vietnam, the Veteran stated that he was exposed to noise from M-16, M-50, rocket-propelled grenades, 20mm and artillery rounds as well as claymore mines. Additionally, as a heavy truck driver and bridge specialist, he endorsed being subjected to fire while traveling within Vietnam via truck. The Veteran described his current ringing symptomatology as akin to the sound of hundreds of cicadas in a field. He stated that he must turn on a television or radio to distract from the ringing in order to sleep. Hearing loss has resulted in difficulty understanding others while speaking, and difficulty hearing television unless the volume is high. On VA examination in July 2010, the Veteran reported hearing difficulty going back at least 20 years and that he can hear sounds but cannot understand what is being said to him. The Veteran denied a family history of hearing loss and denied any recent ear infections or ototoxic drugs. With regard to tinnitus, the Veteran endorsed constant tinnitus in both ears, having first noticed it during service. Prior to enlistment, the Veteran had been a switchman for a railroad and he returned to working for a railroad after service with a total of 40 years spent working for a railroad. The Veteran denied any history of recreational noise exposure. On audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 45 60 65 LEFT 30 30 40 65 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. Otoscopic evaluation revealed ear canals free of cerumen bilaterally. The diagnosis was normal/mild sloping to moderately severe sensorineural hearing loss bilaterally. Speech reception thresholds were in agreement with pure tone test results and word recognition scores were excellent bilaterally. In a follow-up examination the same month, the VA examiner opined that the Veteran's records revealed normal hearing on enlistment and at separation, without complaints of hearing loss or tinnitus during service. The examiner concluded that the lack of in-service complaints and the normal hearing at separation indicated that the Veteran's hearing loss and tinnitus were not related to service. In November 2011 the VA examiner again reviewed the Veteran's service treatment records and again noted that hearing on enlistment and separation were normal bilaterally. The examiner noted that although the Veteran may have experienced noise exposure during service, that he did not report any acoustic damage on separation combined with 40 years of post-service work as a railroad switchman, indicated that it was not as likely as not that the Veteran's hearing loss and tinnitus were related to his in-service noise exposure. Furthermore, the examiner stated that the claimed disabilities were likely due to the Veteran's long history of civilian occupational noise exposure. The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as ringing in the ears and loss of hearing as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran's lay statements regarding exposure to live fire while in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service in Vietnam as a heavy truck driver and bridge specialist. Additionally, the Board accepts the Veteran's account of having been in close proximity to a grenade at detonation during basic training. Furthermore, the competent medical evidence, contemporaneous with the Veteran's service, shows a loss of hearing acuity from the time of induction until separation. The Board finds that bilateral hearing loss was incurred in service. Because sensorineural hearing loss is an organic disease of the nervous system, it is considered a "chronic disease" as listed under 38 C.F.R. § 3.309(a) and as such is subject to the application of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record shows an indication of some hearing loss in service as indicated on the February 1971 audiometric examination, the Veteran has made credible statements averring to hearing loss in service and continuous symptomatology of hearing loss since service, and he currently has sensorineural hearing loss disability. Accordingly the factors necessary to establish entitlement to service connection on a presumptive basis for bilateral hearing loss have been met. The Board finds that tinnitus was incurred in and is attributable to service. Entitlement to service connection for tinnitus cannot be established through application of 38 C.F.R. § 3.303(b), however 38 C.F.R. § 3.303(d) affords that 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. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. To the extent that the Veteran denied running ears at separation, this is not a symptom of tinnitus, and to the extent that he denied "ear troubles" at separation, the Board finds this so be an overly general statement of denial and of limited probative value when compared to his current specific and consistent statements endorsing ringing in the ears. With regard to the VA examiner's July 2010 and November 2011 opinions that the Veteran's hearing loss and tinnitus are not due to service, the Board finds such opinions to be of limited probative value. The examiner based her conclusion on the lack of in-service complaints of hearing loss or tinnitus, combined with the nearly 40 year gap between separation from service and filing his claim. The examiner fails, however, to take note of the Veteran's February 1971 audiological evaluation which shows an apparent drop in hearing acuity from the Veteran's induction examination less than two years prior. The examiner also did not address the overall worsening of the Veteran's hearing from induction to separation. Furthermore, in November 2011 the examiner states that the Veteran's hearing loss and tinnitus are more likely than not due to post-service noise occupational exposure. However the examiner noted only that the Veteran reported working as a switchman for the railroad for 40 years after service and did not provide any rationale for finding that post service noise exposure was the only cause of hearing loss and tinnitus. In addition, the examiner did not address the Veteran's assertions that he had both hearing loss and tinnitus in service and ever since service. As such, the Board finds such opinions of limited probative value. Accordingly, the weight of the evidence indicates that bilateral heraing loss and tinnitus were are are related to service. Thus service connection is established for bilateral hearing loss and tinnits and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs