Citation Nr: 1314983 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-39 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1976 to October 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, a hearing was held before a decision review officer at the RO; a transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. It is reasonably shown that the Veteran's bilateral hearing loss disability is related to his exposure to noise trauma in service. 2. It is reasonably shown that the Veteran has tinnitus which began in service and has persisted. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1131, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 1157 (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, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants the appellant's claims, there is no reason to belabor the impact of the VCAA on these matters, since any notice error or duty to assist omission is harmless. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran claims that his duties in service included setting up artillery positions and observing artillery firing, and that exposure to the noise associated with such duties caused him to develop hearing loss and tinnitus. At a May 2010 hearing before a decision review officer at the RO, the Veteran testified that since service, he has worked as a land surveyor and as a housekeeping work leader, work which did not expose him to occupational noise, and that he experienced little or no recreational noise trauma. The Veteran's DD-214 reflects that he served as a fire support specialist/surveyor in an artillery unit. His service treatment records reflect that on September 1976 service entrance examination his ears were normal on clinical evaluation. On audiometry at the time puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 X 35 LEFT 20 25 25 X 15 On audiometry in February 1977 puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 10 10 35 LEFT 25 20 10 15 40 On August 1979 service separation examination audiometry, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 X 15 LEFT 25 10 10 X 15 On private audiological evaluation in April 2008, the Veteran reported having hearing loss for about 30 years and persistent tinnitus in both ears. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 60 95 LEFT 30 20 25 70 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 72 percent in the left. The examiner stated that puretone testing revealed a sensorineural hearing loss (SNHL) with a reverse cookie bit configuration that spans the normal to profound range, bilaterally. An ENT consultation was recommended. An April 2008 VA treatment record notes the Veteran complained of hearing loss and ringing in his ears. In September 2008, he endorsed having hearing loss, but denied tinnitus. On March 16, 2009 VA audiological evaluation, the Veteran reported having difficulty hearing since service, when he also began experiencing a bilateral high-pitched tonal tinnitus. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 80 85 LEFT 10 10 30 75 85 The audiologist stated that the examination findings were consistent with a normal to severe SNHL, bilaterally, and opined that the configuration and onset of the hearing loss are most likely consistent with noise exposure that occurred while serving in the military. On March 17, 2009 VA compensation and pension examination a physician stated that he could not determine whether the Veteran's hearing loss and tinnitus were related to service noise exposure without resorting to mere speculation. He noted that a VA audiologist found the Veteran's pattern of hearing loss to be consistent with noise exposure, but indicated that the Veteran should not have been exposed to severe noise in service considering his occupational specialty and lack of combat experience. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). 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 claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing loss disability is defined by regulation. For the purpose 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. It is also well-established in caselaw (See Hensley v. Brown, 5 Vet. App, 155 (1993)) that service connection for hearing loss is not precluded where "hearing was within normal limits on audiometric testing at separation from service." The Court's discussion cited to, and acknowledged agreement with the [VA] Secretary's assertion "that if the record shows (a) acoustic trauma in service and audiometry showing an upward shift in tested thresholds in service, though still not meeting the requirements for a 'disability' under 38 C.F.R. § 3.385, and (b) postservice audiometry showing a hearing loss disability under 38 C.F.R. § 3.385, authorities must consider whether there is a medically sound basis to attribute the postservice findings to the injury in service, or whether they are more properly attributable to intercurrent causes." Hearing Loss It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. His service in an artillery unit reflects that he likely was exposed artillery fire/hazardous level noise in service. What he still must show to establish service connection for his bilateral hearing loss is that it is related to the noise trauma in service. On VA audiological evaluation on March 16, 2009, a VA audiologist opined that the Veteran's hearing loss is in a configuration consistent with noise exposure in service. Given that the Veteran is recognized as having a service occupation known to result in a noisy environment, and that the examiner cites to clinical data (the configuration of the hearing loss), and because the Board finds no reason to question the provider's expertise in the matter, the Board finds the opinion probative and persuasive evidence. The Board notes that on the following day a VA compensation and pension examiner opined that he could not resolve the issue of whether the Veteran's hearing loss and tinnitus are related to service without resort to speculation. In essence, this is a non-opinion, with no probative value. [And while he appears to question the audiologist's opinion that the hearing loss is military noise trauma-related by observing that the Veteran did not serve in a military occupation with known associated noise trauma, that supposition does not acknowledge the Veteran's service in an artillery unit.] The Board notes that the Veteran's audiometry at separation found his hearing to be normal. However, such is not fatal to his claim of service connection, as he can establish service connection by affirmative evidence of a nexus between his current hearing loss and service. Here, we have such evidence in the opinion of the March 16, 2009 audiologist. In summary, the record shows that the Veteran, has a bilateral hearing loss disability, that he was exposed to noise trauma in service, and that there is a nexus between the hearing loss and his service. All of the requirements for establishing service connection are met. Service connection for bilateral hearing loss disability is warranted. Tinnitus As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and its presence has been reported by the Veteran and acknowledged by VA medical care-providers, it is shown that the Veteran has tinnitus. What remains necessary to establish service connection for the tinnitus is evidence of a nexus between such disability and the Veteran's service/exposure to noise trauma therein. Notably, one method of establishing nexus (and service connection) is by showing inception of the disability for which service connection is sought during service. See 38 C.F.R. § 3.303(a). The Veteran alleges his tinnitus began in service and has persisted since. Service medical records do not note tinnitus, and the Board must look to the other medical and lay evidence of record pro and con in this matter. The fact that tinnitus was not noted in the service treatment records does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. Against the Veteran's claim is a September 2008 notation in the record wherein he endorsed having hearing loss, but denied tinnitus. In support of the Veteran's claims are his many consistent reports in private and VA treatment records, including on VA examination, and in testimony before the RO, that he has had tinnitus since service. The Board observes that under governing caselaw lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran has provided fairly consistent (with one notable exception) reports indicating that his tinnitus began in service, and has persisted. The Board notes that audiometry in service showed elevated puretone thresholds and that tinnitus is known to be associated with SNHL (which supports his reports). Resolving remaining reasonable doubt in the Veteran's favor, as required (see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that it is shown that the Veteran's tinnitus became manifest in service and has persisted since. Thus, the requirements for establishing service connection for the tinnitus are met. Service connection for tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs