Citation Nr: 1315330 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 12-33 561 ) 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 Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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. There is an approximate balance of positive and negative evidence as to whether bilateral hearing loss is etiologically related to in-service noise exposure. 2. There is an approximate balance of positive and negative evidence as to whether tinnitus is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred as a result of his active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred as a result of his active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that records on file are sufficient to resolve the matter in the Veteran's favor. Any defect regarding VCAA must be considered harmless given the favorable action taken herein below. II. Service Connection The Veteran is seeking service connection for bilateral hearing loss and tinnitus. He essentially contends that he developed these disabilities as a result of noise exposure during his military service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as sensorineural hearing loss, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss). 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). Hensley v. Brown, 5 Vet. App. 155, 158 (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, 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. The Board acknowledges that the lack of any evidence that a veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Veteran's current bilateral hearing loss and tinnitus disabilities are confirmed by the January 2013 VA audiological examination report. This report reflects that the Veteran's right ear audiological thresholds were 15, 25, 50, 55, and 85 decibels, for a four-frequency average of 54 decibels. His left ear audiological thresholds were 15, 25, 45, 50, and 70 decibels, for a four-frequency average of 48 decibels. His speech recognition scores were 94 percent in the right ear and 90 percent in the left ear. With respect to in-service hearing loss and tinnitus, the Veteran's service treatment records reflect that he did not complain of or seek treatment for either disability during service. His September 1953 service entrance examination report reflects that his whispered voice testing was normal. His August 1957 separation examination report notes right ear audiometry readings of 30, 20, 20, 25, and 20 decibels in the right ear and 20, 15, 15, 20, and 25 decibels in the left ear. (Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Thus, the readings in this case have been converted from ASA units to ISO units.) The separation examination report also notes whispered voice and spoken voice scores of 15/15 bilaterally. In terms of in-service noise exposure, the Veteran reported in his April 2011 notice of disagreement and his November 2012 substantive appeal that, although his DD Form 214 reflects that he was a personnel specialist, he worked on the flight line for many months between December 1954 and May 1956. On his September 2009 claims form, the Veteran reported that he was sent to assist on the flight line at various times while on active duty in Germany. He specifically described being exposed to afterburner noise from jets taking off and landing. He reported that he was checked at the base hospital but nothing was ever done. He reported that his hearing loss and tinnitus began in service and that he was treated at an Air Force hospital in Germany from April 1955 to September 1955. As noted above, however, no such records have been located. A February 2005 VA medical record notes that the Veteran has had gradual, bilateral hearing loss and constant bilateral tinnitus, more noticeable in the last three or four months. It notes military and occupational noise exposure as a truck driver in the oil and gasoline industry. There are two medical opinions of record that address the nexus issue. The first of these is a November 2012 opinion from a private audiologist, and the second is an opinion that appears in a January 2013 VA examination report. According to the November 2012 opinion, the Veteran reported that he worked on the flight line, loading or unloading aircraft, between December 1954 and May 1956. At that time, he was exposed to loud noise from jet aircraft. He reported that his ears began ringing during that time. He reported that he was evaluated at the base hospital for tinnitus and was told that there was no treatment for it. The Veteran "contends that his hearing was damaged by this exposure to hazardous noise in service and that his tinnitus is a symptom associated with his hearing loss." The audiologist conducted a hearing examination, the findings of which she described in her letter. She noted that the Veteran had "significant" loud noise exposure in service and that he reported having first experienced tinnitus in service. The audiologist opined that "[i]t is at least as likely as not that this noise exposure contributed to his current hearing loss and tinnitus." Her opinion "is based on the fact that prolonged exposure to loud noise causes damage to outer hair cells in the cochlea resulting in permanent, progressive, sensorineural hearing loss and tinnitus." She also noted that his hearing loss and tinnitus may have worsened as a civilian. The January 2013 VA examination report indicates that the Veteran's hearing loss is not at least as likely as not caused by or a result of his military service. In explaining this opinion, the examiner noted that the Veteran's military occupational specialty (MOS) was listed as "Personnel Clerk." He also noted that the Veteran reported that he did not directly engage in combat and did not have non-combat duties in a combat zone. He was stationed in Germany for approximately 17 months. He reported military noise exposure from loading and unloading aircraft on the flight line while stationed in Germany. The Veteran reported post-service employment including owning and operating a service station and selling insurance. The Veteran reported post-service recreational noise exposure from personal use of lawn equipment. His history was negative for ear surgery, familial history of hearing loss, head/ear trauma, and use of ototoxic drugs. The examiner noted that review of claims file reflected hearing sensitivity was within normal limits bilaterally from 250 to 8000 Hertz at the time of his August 1957 separation examination. Audiometric test results at enlistment were not available for review, so no comparison of hearing sensitivity from enlistment to separation could be made. The examiner noted that the Veteran's MOS of "personnel specialist" was listed as low probability of acoustic trauma. The examiner described the Veteran's flight line noise exposure as having occurred "on occasion." In justifying the negative etiology opinion, the examiner cited a statement from a Senior Research Audiologist Coordinator of the National Institute for Occupational Safety and Health (NIOSH). This statement notes that many factors are associated with the development of noise-induced hearing loss. One such factor was noted to be individual susceptibility. He observed that "it does not necessarily follow that because a person was exposed to hazardous noise, he or she must have a noise-induced hearing loss." The VA examiner noted that the November 2012 private audiologist's opinion noting "'the fact that prolonged exposure to loud noise causes damage to outer hair cells in the cochlea resulting in permanent, progressive, sensorineural hearing loss and tinnitus' ... is not completely accurate." The examiner stated that "[i]t is POSSIBLE for exposure to loud noise to cause damage to outer hair cells in the cochlea but cannot be stated in a manner to imply it always occurs." He also noted that "hearing loss resulting from noise exposure is a real-time event. Hearing loss resulting from noise exposure is NOT progressive." He cited scientific research from the American College of Occupational and Environmental Medicine indicating that hearing loss due to noise does not progress beyond age-related changes once the exposure, and he concluded that little weight can be given to the private audiologist's nexus statement. The VA examiner stated that, in the case at hand, "[a]udiometric test results at separation from the service show normal hearing sensitivity bilaterally and the veteran's military occupational specialty had low probability for acoustic trauma." He stated that, "[t]his is not to say veteran was not exposed to loud levels of noise while in the Air Force, just that the exposure reported did not result in the hearing loss found at the audiological examination." The examiner noted that the Veteran reported constant bilateral tinnitus. The Veteran was unable to provide any specific dates or circumstances regarding onset, but estimated that tinnitus began 30 years ago. The examiner opined that the Veteran's tinnitus was a symptom associated with his hearing loss. In opining that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure, the examiner noted that the Veteran's report of tinnitus onset of 30 years earlier was consistent with a December 2004 primary care note in which the Veteran reported that his tinnitus had been present for approximately 15 years. Based on the above, the examiner estimated that the Veteran's tinnitus began sometime in the 1980s, approximately 25 to 30 years following his discharge from service. The examiner also noted that audiometric data at separation from service shows hearing sensitivity to be essentially within normal limits bilaterally from 250 Hertz to 8000 Hertz. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the case at hand, the Board observes that both examiners are audiologists who possess the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The private audiologist's opinion is based, in large part, on the Veteran's own lay description of his history of having been exposed to noise from the flight line and having had hearing loss and tinnitus since service. Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the Veteran can attest to factual matters of which he had first-hand knowledge, including having been exposed to loud noise from working on the flight line and that he had ringing in his ears in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board also finds the Veteran's lay contentions, both with respect to his having been used on the flight line and having had problems with his hearing since service, to be credible. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). As noted above, the record reflects that, although they were still within normal limits, the Veteran's hearing thresholds were elevated at the time of his separation from service. These audiogram findings corroborate the Veteran's report of having had trouble hearing since service. The Board further finds that the private audiologist's opinion is not outweighed in probative value by the VA examiner's opinion. The Board finds that the probative value of the VA opinion is diminished to the extent that the examiner appears to discount the Veteran's reports of having worked on the flight line in service, instead citing the low probability of noise exposure that the Veteran would have had as a personnel specialist. Because the Board finds the Veteran's description of in-service acoustic trauma as competent and credible, the Board must accordingly discount the probative value of an opinion that does not appear to take this source of acoustic trauma into account. In short, the Board finds that the evidence is in relative equipoise with respect to whether the Veteran's current bilateral hearing loss and tinnitus are related to in-service acoustic trauma. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that grants of service connection for bilateral hearing loss and tinnitus are warranted. ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs