Citation Nr: 1315455 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-22 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to July 1966. This matter comes to the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran was afforded a Travel Board hearing in May 2012. A transcript of the testimony offered at this hearing has been associated with the record. The appellant has submitted evidence that has not yet been considered by the RO. In this regard, the Board may consider this evidence in the first instance because the appellant has waived initial RO consideration thereof. See 38 C.F.R. § 20.1304(c) (2012). In January 2013, the Board referred the case to the Veterans Health Administration ("VHA") for a medical opinion from an audiology specialist concerning the cause of the Veteran's claimed bilateral hearing loss and tinnitus. In February 2013, the opinion was received and associated with the claims folder; the appellant and his representative were subsequently furnished a copy of the opinion and advised that the appellant had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903 (2012). In March 2013, the appellant's representative submitted further written argument in support of the claim and the Veteran indicated that he had no further evidence to submit. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran has bilateral hearing loss that is causally related to service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus that is causally related to service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, service connection for bilateral hearing loss is established. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Resolving doubt in favor of the Veteran, service connection for tinnitus is established. 38 U.S.C.A. §§ 1110, 1154, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C.A. §1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012); Hensley, 5 Vet. App. at 159-60. Service connection for sensorineural hearing loss may be granted if the disability becomes manifest to a compensable degree within one year following separation from active military service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies is 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, 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims that he incurred bilateral hearing loss and tinnitus in service due to exposure to acoustic trauma. He has related a significant history of noise exposure in service, consistent with his duties as a Machinist's Mate and Boiler Operator Helper. See DD Form 214. He asserts that bilateral hearing loss and tinnitus are related thereto and offers a history of tinnitus and decreased hearing acuity in and since service. A review of the Veteran's service treatment records discloses no complaints of hearing loss or tinnitus. Prior to November 1967 service departments consistently used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the tables below show the ASA measurements recorded in service with the comparable ISO (ANSI) measurements in adjacent parentheses. Upon entrance examination in January 1963, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT Zero (15) Zero (10) Zero (10) N/A Zero (5) 10 (20) Zero (10) LEFT Zero (15) Zero (10) Zero (10) N/A Zero (5) 10 (20) Zero (10) Upon separation, an audiogram was not obtained. However, his hearing was 15/15 bilaterally upon whispered and spoken voice testing at separation examination in July 1966. 15/15 is normal. Smith v. Derwinski, 2 Vet. App. 137 (1992). The Veteran was not treated for hearing complaints in service. Of record are audiology records from the Veteran's prior employer dated in June 2005, June 2006 and May 2007. These records pertain to the Veteran's employment at a mill and mark the earliest clinical evidence of record pertaining to hearing loss and tinnitus. The June 2005 record notes that the Veteran had a moderate loss in hearing at this time. It also notes that the Veteran had prior military service, hunted and went target shooting. It documents that the Veteran denied the use of hearing protection around loud noise and hearing protection prior to the test, and that this was the Veteran's first test with this employer. The June 2006 record documents a similar impression of bilateral hearing loss. It also documents that the Veteran denied a history of ringing in the ears. Prior military service, hunting and target shooting were noted in regards to hearing history. Also noted was that the Veteran denied a history of hearing protection around loud noises and that hearing protection had not been worn prior to the test. The May 2007 audio record notes a similar impression of moderately severe loss in hearing. It also notes that the Veteran denied a history of ringing in the ears, wearing hearing protection around loud noises, and wearing hearing protection prior to the test. In furtherance of substantiating his claim, the Veteran submitted a personal statement in November 2007. In this statement, he related that while serving in the Navy he worked as an engine repairman, where he worked around diesel engines, pumps, boilers and blowers in confined spaces and where he was exposed to loud noise. He noted that he was never provided any hearing protection. He related that he had no hearing loss or ringing in his ears when he enlisted. In terms of pre-service occupation, the Veteran related in his November 2007 statement, that he worked for the state forest department staking brush. Post-service, he noted that he worked logging and truck driving. He related that he used hearing protection when cutting trees. He offered that he had hobbies, including four-wheeling, hunting and fishing. Of record is a November 2007 statement from the Veteran's wife. In this letter, she related that they had been married 42 years and that she noticed from the time that she married the Veteran that she often had to repeat what she might be saying to him. She also noted that the Veteran would inform her, in such situations when questioned about it, that he simply could not hear her. She also related that the Veteran had mentioned having a ringing and a pressure in his ears often while in service, and that he still did. She stated that the Veteran had always had to have the TV volume turned up. She informed that his hearing had gotten progressively worse through the years, but felt that his hearing disability was attributable to the service. She noted that the Veteran had always taken the precaution of wearing ear plugs when working or pursuing his hobbies. In another letter dated in November 2007, the Veteran related that he had not had a history of hearing loss prior to entering the service. He noted that after basic training he was sent to work on a ship and diesel engines. He noted that the engines were in an enclosed area that also housed the generator for the boat. He noted that this was when he first began having ringing and pressure in his ears. He related further that while serving off the coast of Vietnam he was also exposed to noise in a ship's boiler room and that these noises continued to cause ringing and pressure in his ears. Following service, he related that he worked as a logger and truck driver for the most part, and that he was a hunter and enjoyed riding his all-terrain vehicle (ATV). He stated that these were noisy habits, but that he always tried to wear hearing protection when doing his job or his hobbies. He noted that over the past 2 to 3 years he worked in a shop at a local mill as a mechanic's helper and that he worked the graveyard shift after the mill was closed. He noted that he had 2 ear tests while working in this capacity at the mill and that the second test showed more hearing loss over the first. He related a history of hearing difficulties over the past 42 years. In a December 2007 statement the Veteran offered clarification of his time working in the mill, particularly with respect to noise exposure. In this regard, he noted that he worked in the shop, which was away from the noise, and that he worked when production had ceased, thus making it a quiet work environment. He noted that his other jobs were not in noisy areas and that he was not subjected to industrial noises. In May 2008 the Veteran was afforded a VA examination based upon a review of the claims file, including the service treatment records. At the time of the examination, the Veteran complained that his hearing loss had gotten worse over the past year and that he had started hearing a "ring/hum," i.e. tinnitus, the year prior to the examination. However, the Veteran explained that tinnitus might have been present prior to this time, but that he started becoming aware of it only a year prior. The examiner outlined a reported history of exposure to engine room noise in the military. The examiner also outlined the Veteran's reported pre-service history of working for the forest department, as well as his post-service history of truck driving for 35 years and working as a mechanic's helper at a local mill, when decreased hearing acuity was first clinically assessed. On VA audiological testing pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 65 65 LEFT 20 20 35 70 65 Pure tone averages were 48 for the right ear and 48 for the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 68 percent in the left ear. This shows bilateral hearing loss to an extent qualifying as a disability for VA purposes. 38 C.F.R. § 3.385. The examiner assessed moderately-severe high frequency sensorineural hearing loss in both ears, as well as tinnitus, per the Veteran's reports. The examiner outlined the findings of the aforementioned employment audiology records. In terms of etiology, the examiner noted that the Veteran had normal hearing in both ears upon entering the military, although no pure tone testing was done at discharge. They also noted no complaints of hearing loss or tinnitus documented in the service treatment records and that the initial documentation of hearing loss appeared in the June 2005 private employer audiogram, referenced herein above. The examiner thus concluded, based on limited military noise exposure and significant post-service occupational noise exposure that the Veteran's bilateral hearing loss was less likely than not incurred in service. In regards to the etiology of tinnitus, the examiner also offered a negative opinion. In this regard, the examiner noted that the Veteran reported that tinnitus had begun about 41 years post-discharge from service, although he may have noticed it before then. The examiner also noted that the Veteran denied a history of tinnitus on each of his employment hearing tests, as outlined above. Based upon these factors and rationale the examiner concluded that it was their professional opinion that the Veteran's military service did not cause or contribute to tinnitus in the Veteran. In furtherance of substantiating his claims, the Veteran submitted a December 2008 opinion from T.B., M.D. In the opinion, Dr. B. notes that the Veteran was a 63-year-old man who had noticed ringing in both ears and that the Veteran had had noticeable hearing loss since his military service from 1963 to 1966. Dr. B. noted that the Veteran related having worked in an engine and boiler room in service with exposure to constant noise without the use of hearing protection. The Veteran related, at this time, that he felt his bilateral hearing loss was attributable to such exposure. Dr. B. also noted that since service, the Veteran reported that he had rarely used chain saws, power tools or hunted, and that he regularly wore hearing protection during these activities. The Veteran reported, apparently, that he had not had any prior hearing tests. Examination by Dr. B. resulted in an assessment of bilateral high-tone sensorineural hearing loss and tinnitus secondary thereto. Dr. B. explained that his diagnosis of bilateral hearing loss was "consistent with noise exposure history" and that it was "more likely than not due to the noise exposure [the Veteran experienced] in the Military." In furtherance of attempting to substantiate his claims, the Veteran submitted several personal statements from people he served with in the Navy. These statements generally relate that the Veteran was exposed to noise in the service, as described above. The statements also generally relate that the Veteran had good hearing prior to service and that the authors of the statements recall the Veteran's hearing being worse after his discharge, apparently per the Veteran's reports, and that hearing protection was not worn in service. In a lengthy November 2009 statement the Veteran offered argument in favor of his claim, with particular emphasis on the nature of the work that he did following service. In regards to logging, he explained that he worked hooking downed trees and was far away from any noisy equipment. In regards to truck driving, he noted that he was not exposed to any excess noise as his truck cabin had been constructed to OSHA standards. In regards to his work at the mill, he related that he did not work inside the mill or when it was actually in operation. He explained that although he hunted, his use of firearms was very infrequent. In regards to riding his ATV he explained also that the ATV was constructed to OSHA and DEQ (government) standards for noise levels. He also related that he wore hearing protection when riding his ATV. He requested that these factors be considered in adjudicating his claims and reiterates his contentions elsewhere in the record, including through his representative. See e.g. July 2011 VA Form 646. In May 2012 the Veteran testified before the Board. In testifying, he emphasized that when he served on a torpedo retriever, that the engine room thereof was very small and noisy. He also emphasized that when he served on an aircraft carrier, the USS Coral Sea, he was also exposed to noise in the boiler room, although this was not as noisy as his time on the torpedo retriever. He testified that he did not have the benefit of hearing protection in service. He reiterated his history of post-service noise exposure, particularly that he was not exposed to significant loud noises while working or recreating, as outlined above. He testified that he always wore hearing protection while hunting. He requested that the claims be granted and asserted that the evidence was in equipoise due to Dr. B.'s favorable opinion. As noted above, in February 2013 a VHA opinion, notably based upon a full review of the claims file, was obtained and associated with the claims file. The opinion outlines the Veteran's reports of exposure to noise in service, as well as the audiometrics dated therein, to include the whispered/spoken voice testing at discharge. It also outlines the Veteran's post-service history of noise exposure, which notably includes his work as a logger, truck driver and a mechanic's helper at a mill. It references the relevant medical evidence and his contentions. With respect to bilateral hearing loss, the examiner offered a favorable opinion. In offering the opinion, they stated that "with the additional information supplied by the [Veteran] as to his military and post-military noise exposure, it is at least as likely as not that the hearing loss is a result of military noise exposure." In regard to tinnitus, the examiner likewise offered a favorable opinion as well. They related that based upon their review of the evidence, it was established that there had been an event in service, i.e. noise exposure, and a link between tinnitus and the in-service event. They explained that although there was no documentation of tinnitus in the service treatment records or at the time of the post-service occupational hearing conservation examination, that based upon the Veteran's history of in-service noise exposure and his "subsequent clarification" of post-service occupations and recreational activities, it was as likely as not that tinnitus was the result of in-service noise exposure. Initially, the Board points out that the presumptive regulations are unavailing. There is no evidence of bilateral hearing loss within the first post-service year. Although the Veteran is competent to describe symptoms of hearing loss, which he can perceive, hearing loss for the purpose of VA disability compensation is not a condition capable of lay observation because it relies upon audiometric testing. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. at 307. Thus, notwithstanding the Veteran's lay assertions regarding hearing loss, in the absence of audiometrics dated within the first post-service year, the presumptive provisions are not applicable. Resolution of the present claims largely depends upon the weight to be attached to the various medical opinions of record, and this determination ultimately depends on the weight to be afforded the Veteran's reported history of noise exposure, hearing acuity and tinnitus. Along these lines, the Board notes that the Veteran has reported a somewhat contradictory history. For example, in 2005 and 2006 he denied history of tinnitus (ringing in the ears), but later reported that he had a history thereof since service, as well as a history of noticeable tinnitus since around May 2007 during his VA examination. Likewise, he denied any substantial noise-exposure post service, but on one occasion related that he wore hearing protection as required and on another that he did not wear any hearing protection. Nevertheless, the history does seem consistent with lay observation and characteristic unclear recollection of the facts, i.e. the Veteran appears to be a somewhat poor historian. Thus, the Board finds the Veteran's reported history to be credible, including as noise exposure in service seems consistent with his service duties. It remains the duty of the Board as the fact finder to determine credibility in any number of other contexts, whether it has to do with testimony or other lay or other evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Because the Board has found the Veteran's reports to be credible and there are competing favorable and unfavorable medical opinions of record on whether tinnitus and bilateral hearing loss are attributable to his credible reports of in-service noise exposure, the evidence is at least evenly balanced that bilateral hearing loss and tinnitus are attributable to in-service acoustic trauma. Accordingly, the Board concludes that the claims for service connection of bilateral hearing loss and tinnitus are substantiated. Therefore, they are granted. Gilbert, supra. ORDER Entitlement to service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs