Citation Nr: 1317412 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-39 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine 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 WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In addition to the above issues, the Togus RO also denied a claim for service connection for a scar on the left arm and granted a claim for service connection for PTSD and awarded an initial 10 percent disability rating. The Veteran filed a Notice of Disagreement (NOD) concerning these additional claims and the RO included them in the SOC. However, in the Veteran's September 2009 substantive appeal (via a VA form 9), he, in pertinent part, limited his appeal to the the issues listed on the title page of this decision. As such, the claims for service connection for a scar on the left arm and entitlement to an initial higher rating for PTSD are not before the Board for appellate review, even though they were discussed during the hearing, because the hearing was held more than a year after the rating decision was issued in March 2008 and more than two months after the SOC was issued in September 2009. See 38 C.F.R. § 20.302(b) (2012) (requirements for a timely VA Form 9). In addition, a claim of entitlement to service connection for peripheral neuropathy of the upper extremities as secondary to service-connected diabetes mellitus, type 2, was on appeal at the time of the Veteran's Board hearing. However, he was granted service connection for peripheral neuropathy of both the left upper extremity and the right upper extremity in a January 2012 rating decision. As that is a full grant of the benefit sought as to that claim, it is no longer on appeal before the Board. In September 2011, the Veteran and his spouse testified during a video conference Board hearing before the undersigned. A transcript of that hearing has been associated with the claims file. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The Board notes that the Veteran or his representative have not filed a written waiver regarding initial RO consideration of all the evidence that has been associated with the claims file since his September 2009 Statement of the Case (SOC) was issued. As the Board has determined that the issues currently on appeal will be fully allowed, no such written waiver is needed in this case. Thus, there is no prejudice to the Veteran in proceeding to adjudication of his claims. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral hearing loss is likely related to service. 2. Resolving all doubt in the Veteran's favor, tinnitus is likely related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (hereinafter the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the favorable determinations reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for granting the Veteran's service connection claims for bilateral hearing loss and tinnitus without detriment to his due process rights. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. VA regulations provide that where a Veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Generally, in order to prevail on the issue of service connection on the merits, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, sensorineural hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a) because it is considered an organic disease of the nervous system; therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's claimed tinnitus is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply as to that claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss and for tinnitus. In his written submissions and testimony, he contends that both disorders arose as a result of his military service when he was exposed to acoustic trauma as an infantryman in Vietnam. The determination of whether a Veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. The regulations set forth in 38 C.F.R. § 3.385 operate only to establish when a hearing loss can be service connected. Id. at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. According to the Veteran's DD Form 214, the Veteran served in the Republic of Vietnam and received the Combat Infantryman's Badge (CIB). His military operational specialty was given as a light weapons infantryman. Service treatment records show no complaints about, or treatment for, any hearing difficulties. No service treatment records show any audiometric results that would show a hearing loss disability pursuant to the provisions of 38 C.F.R. § 3.385. For example, audiogram findings, in pure tone thresholds, in decibels, were as follows in his July 1967 pre-induction examination: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) -10(0) -10(0) No report 0(5) LEFT 0(15) 5(15) 10(20) No report 15(20) (The figures in parentheses are based on International Standards Organization [ISO] Standards to facilitate data comparison. Prior to November 1967, service audiometric results were reported in American Standards Association [ASA] Standards in service treatment records.) A May 1969 graphical audiogram also does not show any hearing loss disability pursuant to VA regulations when estimated results are converted to ISO standards. In his July 1969 discharge examination, audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5(10) -5(5) -5(5) 0(10) -10(-5) LEFT 5(20) 0(10) 5(15) 10(20) 20(25) (While after November 1967 service audiometric results were not reported in ASA Standards, in this case it was clearly indicated on the July 1969 examination report that the audiometric results were reported in ASA Standards, so the conversion has been done.) Post-service, a September 1998 private medical record indicated that the Veteran had complained of decreased hearing. A March 2003 private medical record noted specifically the lack of tinnitus or hearing loss. A private audiogram dated in April 2004 is found in the claims file, but the results of this audiogram are in graphical form and are not numerically interpreted, so it is not technically adequate to determine whether the Veteran had a bilateral hearing loss disability meeting the requirements of 38 C.F.R. § 3.385. However, it is clear from this document that the Veteran had a bilateral hearing loss disability as measured by VA with readings of at least 80 decibels at the 1000, 2000, 3000, and 4000 Hz levels in the right ear and of at least 90 decibels at the 1000, 2000, 3000, and 4000 Hz levels in the left ear. At the time he submitted his claim for service connection in August 2007, the Veteran completed a hearing loss questionnaire and a tinnitus questionnaire. He reported on these questionnaires that he had current diagnoses for hearing loss and tinnitus. He also reported that he was a fisherman before service, was in the infantry during service in Vietnam, and wore mandatory hearing protection when he later worked at the Bath Iron Works after service. He described the service noise exposure which caused his hearing loss as follows: "[b]eing subjected to heavy artillery and mortars; [b]ombs dropping beside us." He also denied any recreational noise exposure before, during and after service. According to a September 2007 VA Agent Orange examination, the Veteran wore bilateral hearing aids. Otherwise, no diagnosis of hearing loss or tinnitus was cited. The Veteran underwent a VA audiological examination in February 2008. The Veteran complained that he had difficulty hearing what people said in all listening situations as well as difficulty hearing environmental sounds in all listening situations. He reported that his hearing loss had been long-standing in nature, but was not specific as to the exact onset. A negative history of dizziness, balance difficulties, vertigo, earaches, ear infections, or drainage was noted. He reported that his father had hearing difficulties. Before entering service the Veteran stated that he worked on boats as a fisherman for approximately 10 years without hearing protection. In service, he reported infantry training for six months when he was around howitzers, M-14 rifles, and light automatic weapons without wearing any hearing protection. He said that when in Vietnam for approximately 9 months in frequent combat situations he used a M-16 rifle and was around howitzers as well as tanks without wearing any hearing protection. The Veteran said that after discharge from service he worked on and off at Bath Iron Works for approximately 9 years doing grinding and chipping and wore hearing protection. He then again worked as a fisherman for approximately 15 years without wearing any hearing protection. As to recreational noise exposure, the Veteran said that he went hunting for approximately 10 years without wearing any hearing protection, but had used a chain saw periodically while wearing hearing protection. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 85 85 95 95 LEFT 95 90 80 95 100 Speech recognition scores on the Maryland CNC Word List were 86 percent for the right ear and 88 percent for the left ear. Diagnosis was severe sloping to profound mixed hearing loss in both ears with the exception of a recovery to severe at 2000 Hz in the left ear. The VA examiner noted that no tinnitus was reported. The February 2008 VA examiner opined that the Veteran's hearing did not worsen between the time of his entry and discharge service examinations. Further, although the Veteran stated he was around significant noise while in service, the VA examiner said that his hearing sensitivity at the time of discharge did not appear to have been affected. In addition, service treatment records were silent for any complaints of hearing loss, tinnitus, or signs of auditory dysfunction. The VA examiner stated that a significant portion of the Veteran's profound hearing loss was related to a conductive component which would not be related to military service. In view of all these factors, the VA examiner opined that it was less likely as not that the Veteran's hearing loss was related to service. He also noted that tinnitus was related to the hearing loss. A July 2008 VA primary care note indicated that the Veteran was hard of hearing and had bilateral hearing aids. An audiology consultation noted that the Veteran could not hear without his hearing aids and had difficulty hearing on the telephone. He was currently wearing hearing aids that he had purchased five years before. In an October 2009 submission, the Veteran's service representative stated that it was well known that tinnitus may be present without hearing loss. He also claimed that the February 2008 VA examiner had a long history of unsubstantiated opinions and had presented no basis for his speculative opinion that the Veteran's tinnitus was related to his hearing loss. The representative also noted that the examiner's statement that there was no worsening of the Veteran's hearing between induction and discharge was not accurate. Further, the representative criticized the examiner's comment about a "conductive component" as the examiner had failed to explain what it was and why and how it showed hearing loss was not related to service. VA treatment records showed occasional hearing aid repairs (see records dated in August 2008, September 2008, June 2010, July 2010, December 2010, January 2011, April 2011, and May 2011.) A March 2011 VA audiological consultation noted the Veteran's reported increase in hearing loss and his bilateral, intermittent, and long-standing tinnitus. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 90 90 95 95 100 LEFT 105 100 95 100 105 Speech recognition scores could not be tested due to the limits of the audiometer. Diagnosis was a bilateral profound mixed hearing loss. An April 2011 VA otolaryngology consultation noted that the conductive component was at the maximum range so the examining physician was not sure that the Veteran had a conductive problem. He said that the tuning fork test lead him to believe that the Veteran had mostly a sensorineural problem. Impression was profound hearing loss mostly sensorineural. A June 2011 VA medical record noted that most of the Veteran's mixed hearing loss was sensorineural. During his September 2011 Board hearing, the Veteran's representative complained about deficiencies in the February 2008 VA examination and claimed that it was inadequate. He noted that the Veteran is a combat Veteran and that the position of the examiner that the Veteran's hearing did not worsen between his time of entry and discharge could not be true in view of the fact that the Veteran was located close to howitzers while in service. See Board hearing transcript at p. 3. The Veteran and his wife testified that he first noticed hearing loss and ringing in his ears about 28 years ago and that was when he first began to use hearing aids. Id. at pp. 8-9. The Board's review of the medical and lay evidence of record indicates that the Veteran's current bilateral hearing loss and tinnitus are due to service and, thus, service connection is warranted for both claims. Initially, the Board notes that in the VA audiological medical records cited above the Veteran has been diagnosed with bilateral intermittent tinnitus and bilateral hearing loss pursuant to the provisions of 38 C.F.R. § 3.385. As to service incurrence, information in the claims file indicates that the Veteran is a combat Veteran entitled to the provisions of 38 U.S.C.A. § 1154(b). His service treatment records are silent as to any documented hearing loss or tinnitus disorders during service. However, the provisions of 38 U.S.C.A. § 1154(b) state, in pertinent part, that in any case where a Veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the Veteran. The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but ease the combat Veteran's burden of demonstrating the occurrence of some inservice incident to which the current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999). Thus, the provisions of section 1154(b) apply only to the material issue involved in establishing direct service connection, i.e., evidence of the incurrence of a disease or injury in service. The Veteran is competent, for example, to testify about the circumstances, conditions or hardships of his service in Vietnam. See 38 U.S.C.A. § 1154(b). The Board finds that the Veteran's lay evidence of exposure to loud noise during service from combat duty in Vietnam as an infantryman, where he was in proximity to exploding artillery, bombs, and mortars, is consistent with the circumstances, conditions, and hardships of combat service in Vietnam. He has presented competent and credible evidence to show in-service occurrence of acoustic trauma. His service activities during a time of war also are capable of lay observation and are consistent with his duties. See Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007) (holding that medical evidence is not always required to establish the elements of in-service incurrence and nexus). After reviewing the lay and medical evidence of record, the Board also finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current bilateral hearing loss and bilateral tinnitus disorders are the result of noise exposure during service. While the examiner who conducted the VA audiological examination in February 2008 stated that the Veteran's hearing did not worsen between the time of entry and discharge, the actual results in the July 1967 and July 1969 service audiograms show some decrease in hearing in each ear. Moreover, a Veteran may establish service connection for a current hearing disability by showing that the current disability is causally related to service. Actual hearing loss does not have to be shown during active duty. See Hensley, 5 Vet. App. at 160; see also 38 C.F.R. § 3.304(d) (noting that service connection can be granted for disease diagnosed after discharge). In addition, the February 2008 VA examiner ascribed a significant portion of the Veteran's profound hearing loss to an unexplained conductive component that the examiner claimed could not be related to military service. There was no explanation or any rationale provided for this opinion. However, VA medical records dated later in April 2011 and June 2011 showed that the Veteran had mostly a sensorineural hearing loss. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the lay and medical evidence is, at the very least, in equipoise as to the question of whether the Veteran's hearing loss and tinnitus are related to service. There can be no doubt that further medical inquiry could be undertaken with a view towards additional development of these claims, such as whether his long-standing tinnitus is or is not related to his hearing loss and whether his hearing loss is mostly sensorineural or has a conductive component. However, the Board notes that these claims have now been pending for nearly six years. The Board finds that under the circumstances of this case, the written contentions and testimony of the Veteran, and the VA records dated in April 2011 and June 2011, are sufficient to provide evidence of a nexus, or relationship, between the Veteran's current bilateral hearing loss and service and between his bilateral intermittent tinnitus disorder and his period of active service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus); Barr, 21 Vet. App. at 307-09 (holding that medical evidence is not always required to establish the elements of in-service incurrence and nexus). Therefore, the Veteran has established a link between his hearing loss and military service and his tinnitus and military service. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for both the Veteran's hearing loss disability and his tinnitus disability. As the Board finds that the Veteran has provided evidence of those elements required for a grant of service connection for these claims, the claims for service connection for bilateral hearing loss and tinnitus are granted. ORDER Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for tinnitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ L. A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs