Citation Nr: 1314913 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 06-06 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Michael R. Viterna, Attorney at Law ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from August 1943 to March 1946. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a September 2006 decision, the Board denied the claims for service connection for hearing loss and for tinnitus. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2008, the Court granted a joint motion filed by the parties to vacate the Board's decision and remand the case for further action consistent with the joint motion. Subsequently, in February 2009, the Board issued a second decision again denying the claims. The Veteran again appealed the Board's February 2009 decision to the Court. A single-judge Memorandum Decision in August 2010 vacated the Board's February 2009 decision, remanding the case back to the Board for further development and adjudication consistent with the decision. In a September 2010 Order, judgment was issued. The Veteran's claims were again remanded in a January 2011 remand. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran's current bilateral hearing loss is related to active service. 2. The preponderance of the evidence indicates that the Veteran's current bilateral tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claims for service connection for bilateral hearing loss and tinnitus. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2012) or 38 C.F.R. § 3.159 (2012). Regulations and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.30. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, 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, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that his current bilateral hearing loss and tinnitus are the result of noise exposure during active duty service. Service treatment records are negative for any complaints or evidence pertaining to hearing loss or tinnitus. The examination for enlistment in August 1943 and the examination for separation in March 1946 both indicate that the Veteran had normal hearing acuity with a 15/15 score on whispered voice tests. No hearing complaints or abnormalities were recorded. The Veteran's service personnel records indicate that he participated in three months of field artillery basic training and served the remainder of his active duty service as a mechanic and cook. The Board acknowledges that the Veteran as a member of the 70th Infantry Division, 39th Field Artillery Battalion would have been exposed to acoustic trauma during field artillery basic training. In a January 2005 statement, the Veteran indicated that his ear troubles began in his late thirties. Available post-service medical records establish that the Veteran first complained of ear problems in December 1995 when he reported tinnitus in his left ear. During a March 1999 VA ears, nose, and throat (ENT) consultation, the Veteran reported a 5-year history of tinnitus and was noted to have acute hearing loss. Two months later, in May 1999, the Veteran was provided a VA audiological examination, during which he reported the onset of decreased hearing acuity and tinnitus 10 years prior. An audiogram was provided and the Veteran was diagnosed with moderate to profound sensorineural hearing loss in the right ear at 3000 to 8000 Hertz (Hz) and mild to profound sloping sensorineural hearing loss in the left ear at 1000 to 8000 Hz. During an April 2005 VA examination, the Veteran reported that he had worked as a mechanic and mess Sergeant during service and had been attached to an artillery unit. He reported a history of military noise exposure from artillery fire. He denied any occupational or recreational noise exposure. Regarding the onset of his tinnitus, the Veteran stated that he first noticed it in 1984. Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 92 percent in the left ear. The diagnoses were mild to severe sensorineural hearing loss of the right ear, moderately severe to severe sensorineural hearing loss in the left ear, and bilateral tinnitus. The examiner stated that, while it was possible the Veteran's reported in-service noise exposure caused his hearing loss and tinnitus, his service records were negative for any information pertaining to hearing loss and tinnitus. Therefore, determining the etiology of the Veteran's hearing loss and tinnitus would require resorting to speculation. In support of his claim, the Veteran submitted records from a private physician, along with the results of a May 2006 audiological examination. During an April 2006 private evaluation, the Veteran reported that he got out of service in 1946 and that his hearing loss and tinnitus began in the period between 1958 and 1980. The diagnoses were profound mixed loss in the right ear and moderately severe to profound mixed loss in the left ear with bilateral tinnitus. A VA treatment record authored by a physician in the ENT clinic dated March 2011 indicates that the Veteran's hearing worsened in January 2010 with no known associated event. The Veteran had an MRI to rule out an intercranial cause. The MRI was normal with the exception of mild sinus mucosal thickening. The physician opined that the Veteran had hearing loss, worse on the right side than the left, which is likely due to noise exposure while on active duty rather than microvascular spasm to anterior inferior cerebellar artery (AICA). The Veteran was provided an additional VA examination in November 2011. The examiner reiterated the Veteran's audiological history. The examiner indicated that he could not provide a medical opinion without resorting to speculation concerning the etiology of the Veteran's hearing loss and tinnitus as the only hearing testing done was whisper testing, which does not provide threshold specific information. The Board received a medical expert opinion from a VA Ear, Nose and Throat physician dated April 2013. The expert indicated that there is a 50 percent or greater probability that the Veteran's bilateral hearing loss and tinnitus had its clinical onset while the Veteran was in-service or is related to in-service noise exposure. The expert reiterated the Veteran's history of noise exposure and lack of post-service noise exposure. He indicated that the whispered voice test was unreliable and that the Veteran's current bilateral hearing loss is consistent with noise induced hearing loss. The record clearly shows current diagnoses of bilateral hearing loss and tinnitus. In addition, the Veteran has reported acoustic trauma as a result of noise exposure during service and his field artillery basic training. As noted above, service personnel records establish that the Veteran completed three months of basic field artillery training and the Veteran is competent to report when an injury occurred. The Board therefore finds that the first two of the three elements necessary for service connection have been demonstrated. The Veteran did not report a continuity of symptomatology since service. The history he has provided is to the effect that he incurred acoustic trauma during service, but that he did not notice the onset of ear problems until 1958 at the earliest, more than 10 years after his discharge from active duty service in March 1946. It is unclear from the record when he first sought treatment. In addition, there is no competent evidence demonstrating that either disability manifested to a compensable degree in service or during the first year after his discharge from service. The Veteran himself indicated that his ear problems began when he was in his late thirties. The Veteran was nearly 23 years old at the time of his discharge from service in March of 1946. However, the record contains some medical evidence of a nexus between the Veteran's current disability and his active duty service. The VA audiological examiners determined, after a complete review of the claims file, including service treatment and personnel records, and the Veteran's reported history, that opining on the etiology of the Veteran's hearing loss and tinnitus would require speculation. Additionally, there is an opinion linking the current disability of hearing loss to service by a VA physician in the context of an ENT appointment as well as the most recent April 2013 expert opinion which provided a nexus between in-service noise exposure and the Veteran's current bilateral hearing loss and tinnitus. Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, the Board finds that the preponderance of the evidence indicates that a grant of service connection is warranted for bilateral hearing loss and tinnitus. ORDER Entitlement to service connection for bilateral hearing loss is allowed. Entitlement to service connection for tinnitus is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs