Citation Nr: 1315420 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-36 393 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Navy Reserve from February 1947 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied the claims. In September 2010, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in October 2010 and January 2012 and remanded for additional development. In February 2013, the Board requested a Veterans Health Administration (VHA) opinion. For that reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). 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. Resolving the benefit of the doubt in favor the appellant, the competent medical and competent and credible lay evidence of record demonstrates that the appellant has bilateral hearing loss that is related to service. 2. Resolving the benefit of the doubt in favor of the appellant, the competent medical and competent and credible lay evidence of record demonstrates that the appellant has tinnitus that is related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Notice and Assistance The claims have been granted, as discussed below. As such, the Board finds that any defect related to VA's duties to notify and assist on the claims is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309. The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 3 8 C.F.R. § 3.6(a)(2012). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes, while INACDUTRA includes duty (other than full-time duty) prescribed for Reserves, as well as duty (other than full-time duty) performed by a member of the National Guard of any State. 38 C.F.R. § 3.6(c), (d). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty or ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA, but the appellant is not entitled to the application of the presumption of soundness or the presumption of aggravation except for his active duty. 38 U.S.C.A. §§ 101(24), 106, 1110. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. III. Analysis The appellant asserts that he is entitled to service connection for bilateral hearing loss and tinnitus. For the reasons that follow, the Board finds that service connection is warranted. The appellant was evaluated in a VA audiological examination on October 2008. In the evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 40 65 80 LEFT 20 25 35 65 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Pursuant to the standard set forth in 38 C.F.R. § 3.385, the record establishes that the appellant has a current bilateral hearing loss disability for VA purposes. The VA examiner also reported that the appellant reported constant, bilateral tinnitus. The examiner noted that the appellant's report of the frequency and duration of tinnitus warranted a diagnosis of tinnitus. Therefore, the Board finds that the first element of a service connection claim, that of a current disability, has been met for both his hearing loss and tinnitus claims. In evaluating the second element of service connection, that of in-service incurrence, 38 U.S.C.A. § 1154(a) and 38 C.F.R. § 3.303(a) provide that due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. The appellant reported that he was exposed to loud noise while working as an aircraft mechanic during his reserve service. At the September 2010 Board hearing, he reported that he was an aircraft crew member. (Hearing Transcript (Tr.) at p. 7) He has asserted that he was exposed to loud noise while working as a crewman. (Tr. at p.8) The appellant also asserted that he had bilateral hearing loss and tinnitus as a result of ruptured eardrums in service. He is service-connected for residuals of perforated eardrums. The appellant's Reserves records from the 1960s reflect that he was an aircrewman. Based on this history, the Board finds the appellant was likely exposed to loud noise while on ACDUTRA. However, for service connection to be granted, competent and credible evidence must show that the appellant's current disability is at least as likely as not incurred or aggravated in service. The annual Reports of Medical History from his years of Reserve service reflect that he had the following civilian jobs during that time: salesman, employment counselor, owner-manager of a fuel company, property manager and real estate salesman. However, at a June 2011 VA examination he noted that he worked in a noisy environment at a company that made bullets for 2 to 3 years in the late 1950s. The appellant otherwise consistently denied noise exposure during his civilian professions. March 1951, June 1951, August 1956, May 1958 and May 1960 Reserves service examination reports indicate the appellant had normal hearing based on whisper voice testing. Prior to November 1967, audiometric testing results were reported in standards established by the American Standards Association (ASA). Since November 1, 1967, those standards have been established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. July 1964 and June 1965 audiogram reports indicated he had hearing within normal limits. In the June 1965 evaluation, converted to ISO standards, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 20 10 -- LEFT 20 15 15 15 -- A June 1965 Report of Medical History noted that the appellant's ear was punctured while he was on weekend duty. An August 1965 service treatment record indicated the appellant had intense pain in his right ear, but no tinnitus or hearing loss. In a May 1966 evaluation, converted to ISO standards, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 15 20 15 LEFT 15 10 20 15 10 As noted above, normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet.App. at 157. Thus, the May 1966 evaluation report indicates the appellant had some degree of hearing loss in the right ear. The May 1966 report of medical history noted that the appellant had a right ear perforation 1 year ago and had no trouble since. June 1967, June 1968, June 1969, and June 1970 examination reports indicate the appellant had normal whisper voice test results. June 1973 and May 1975 examination audiogram reports indicated the appellant had hearing within normal limits in both ears. In a May 1974 Report of Medical History, the appellant reported having a history of ear trouble, but denied having had hearing loss. In a June 1976 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 10 LEFT 15 5 10 5 25 The June 1976 examination report indicates the appellant had some degree of hearing loss in the left ear at 4000 Hertz. In a June 1976 Report of Medical History, the appellant reported having had ear, nose, or throat trouble and noted that he did not know whether he had hearing loss. In a June 1977 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 15 35 LEFT 25 15 10 15 20 The examination report reflects some degree of hearing loss in the right ear at 500 and 4000 Hertz and in both ears at 500 Hertz. June 1978 and June 1979 examination reports indicated that the appellant had normal hearing in both ears from 500 to 4000 Hertz. In a June 1980 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 15 LEFT 25 15 5 10 20 The June 1980 examination report reflects that the appellant had some degree of hearing loss at 500 Hertz in the left ear. In a June 1981 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 30 LEFT 5 0 15 5 40 As noted above, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. Thus, the June 1981 evaluation indicates the appellant had a hearing loss disability for VA purposes in the left ear and some degree of hearing loss in the right ear. In a June 1982 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 35 LEFT 15 5 5 10 35 The June 1982 audiological examination reports indicate the appellant had some degree of hearing loss in the right and left ears at 4000 Hertz. In a June 4, 1983 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 10 0 50 LEFT 0 0 10 10 50 The examination report noted the appellant had high frequency hearing loss. The June 1983 examination report reflects that the appellant had a bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385. June 1984, July 1985, July 1986 and July 1987 audiological examination reports also show that the appellant had bilateral hearing loss for VA purposes. The appellant's pay records reflect that the was not on ACDUTRA at the time of the above examination reports, when he was confirmed to have hearing loss. However, he had a few weeks of ACDUTRA each year throughout the years above. See Defense Finance and Accounting Service records. For example, the appellant had ACDUTRA from February 22, 1976, to March 5, 1976, and from July 17, 1976, to July 29, 1976. As noted above, the appellant was afforded a VA audiological examination in October 2008. The VA examiner found that the appellant had periodic medical exams while in the Reserves and electronic hearing testing showed a gradual development of high frequency hearing loss after 1965. The appellant's hearing sensitivity was within normal limits bilaterally in June 1965. The examiner noted that high frequency sensorineural hearing loss is not associated with perforation of the tympanic membranes. The etiology of the appellant's high frequency hearing loss is consistent with the etiology of noise exposure. The examiner opined that the appellant's hearing loss and reported tinnitus were less likely due to tympanic membrane perforation/middle ear disorder and more likely due to noise exposure following active duty. As the VA examiner did not consider the appellant's exposure to noise during reserve service from February 1947 to June 1989, the VA opinion is inadequate and has limited probative value. The appellant was afforded another VA audiological examination in June 2011. The VA examiner noted that the appellant had noise exposure in an advanced training course for aviation mechanics and as an aviation mechanic in the Reserves. The appellant denied occupational or recreational noise exposure as a civilian. He reported that as a civilian, he worked in sales. The appellant reported that he most recently had tinnitus during a plane ride home from Florida 15 days prior to the examination. The appellant reported that he had not "noticed too much" of the ringing in his ears and that it occurred "once in a great while." On examination, the appellant had bilateral hearing loss for VA purposes. The examiner noted that otoscopy was unremarkable. Tympanometry revealed normal middle ear function in the right ear and some negative pressure with excessive eardrum mobility in the left ear. The VA examiner found the appellant had sensorineural hearing loss. The VA examiner stated that due to the appellant's documented normal hearing found many years after active service, it was her opinion that hearing loss and tinnitus were less likely as not caused by or a result of military noise exposure. As the VA examiner did not consider the appellant's exposure to noise during his years of Reserve service, the VA opinion is inadequate and is not probative. In June 2011, the appellant was also afforded a VA examination to determine whether his hearing loss and/or tinnitus was caused or aggravated by his service-connected residuals of bilateral eardrum perforation. The report reflects that the appellant reported that he opened a small restaurant in college (during the Korean War). He did this for five years. Then, he worked at an arsenal as an adjustor for a company that made bullets in a very noisy environment. He reported that he did this for 2 to 3 years without any protective ear wear. He was then a sales representative for 7 years, had another office job for 7 years, had a job with a publishing company for 7 years, and finally went into the real estate business until retiring about a month before the examination. The VA examiner noted that given the appellant's military history and issues with his ears as presented by him today and from prior documents, he suffered from repeated middle ear barotrauma. The main sequela from perforated tympanic membrane was conductive hearing loss, not sensorineural hearing loss which is an inner ear problem. The VA examiner stated that given the above background, it is less likely than not that his current hearing loss, which is sensorineural, was caused or aggravated by his service-connected residuals of bilateral ear drum perforations. Ear drum perforations and their residuals would cause problems with the middle ear and a conductive hearing loss, not an inner ear problem leading to sensorineural. His audiogram did not show conductive hearing loss. As the VA examiner provided a thorough rationale and the opinion was based on the evidence of record, the Board finds that the June 2011 opinion is adequate and therefore probative. In February 2013, the Board requested a VHA opinion to determine whether the appellant's hearing loss and tinnitus were related to his exposure to loud noise while he was on ACDUTRA. In a March 2013 opinion, a VA audiologist noted that she believed a number of factors may have contributed to the appellant's hearing loss and tinnitus rather than solely the limited amounts of active duty each year while in the Reserves. Aging effects (presbycusis) produce a gradual progressive bilateral hearing loss which is in evidence and may be a likely etiology for the 83 year old Veteran. The VA audiologist noted that the appellant stated that he had hearing loss and tinnitus since the service, but there were no pre/post exams for each of his weekends and 2 weeks of active duty were available for confirmation. After his 90 days of active duty in training, his first recorded sign of hearing loss occurred 20 years later. The VA audiologist stated that, "[G]iving the benefit of the doubt to the Veteran and with no documentation to disprove the Veteran's reported statements, and rather than invoke an "inability to resolve without mere speculation" clause, it is this reviewer's opinion that it is at least as likely as not the onset of the Veteran's hearing loss and tinnitus are related to his active duty service while he was in the Reserves." As the VA audiologist provided a rationale for the opinion, it is adequate and thus probative. The appellant has contended that his hearing loss and tinnitus are related to his periods of ACDUTRA in the Reserves. Although a lay person may be competent to provide an opinion on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428 (2011), hearing loss and tinnitus are not the type of disorders which are susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, he is competent to report symptoms capable of lay observation such as the onset of his tinnitus and symptoms of hearing loss. At the June 2011, VA examination, the appellant reported that his hearing loss and tinnitus began in the service. He reported progressive hearing loss after his ear was ruptured. As the statements are consistent with his Reserves records showing hearing loss, the Board finds the appellant's statements regarding the onset of his hearing loss and tinnitus to be credible. Based on the evidence of record, the Board finds that the appellant was likely exposed to loud noise while working as an aircrewman in the Reserves. The appellant did not report extensive exposure to loud occupational or recreational noise. The appellant's Reserves examination records indicate he first had bilateral hearing loss for VA disability purposes in the left ear in June 1981 and in the right ear in June 1982, but had some degree of hearing loss prior to those dates. The October 2008 VA examiner opined that the appellant's hearing loss and tinnitus were more likely due to noise exposure following active duty, but did not consider the appellant's service on ACDUTRA after 1965. Thus, the VA opinion is not probative. The June 2011 VA examiner also failed to consider the appellant's exposure to noise during his periods of ACDUTRA during his years of Reserve service. Thus, it is not probative. In the March 2013 opinion, the VA audiologist found that it was at least as likely as not that the onset of the appellant's hearing loss and tinnitus were related to his active duty service while he was in the Reserves. As the VA audiologist provided a rationale for the opinion, the Board finds it to be probative. The March 2013 VA audiologist's finding that it was at least as likely as not that the onset of the appellant's hearing loss and tinnitus is related to service is more probative and persuasive than the negative nexus opinions of the October 2008 and June 2011 VA examiners. Giving the appellant the benefit of the doubt, the Board finds that the evidence supports a finding that the appellant's bilateral hearing loss and tinnitus were incurred during the appellant's periods of ACDUTRA. Accordingly, service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs