Citation Nr: 1317426	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-03 404	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for tinnitus.  

2.  Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel
INTRODUCTION

The Veteran is the appellant in the instant appeal.  He had active service from January 1974 to February 1976.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Portland, Oregon, Regional Office (RO) which, in pertinent part, denied service connection for both tinnitus and bilateral hearing loss.  In March 2013, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO.  A hearing transcript was prepared and incorporated into the record.  The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence.  


FINDINGS OF FACT

1.  Tinnitus originated during active service. 

2.  Bilateral sensorineural hearing loss for VA purposes originated during active service.   


CONCLUSIONS OF LAW

1.  Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012).  

2.  Bilateral sensorineural hearing loss was incurred in active service.   38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a), 3.385 (2012).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012).  In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits.  In the decision below, the Board grants service connection for both tinnitus and bilateral sensorineural hearing loss.  As such action represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and to assist is necessary as to those issues.  


II.  Tinnitus 

The Veteran asserts that service connection for tinnitus is warranted secondary to his inservice noise exposure/acoustical trauma including having been in close proximity to a firing tank and/or howitzer.  

Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  

Tinnitus is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a) (2012).  Therefore, the provisions of 38 C.F.R. § 3.303(b) (2012) are not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Veteran's service treatment records make no reference to tinnitus.  His service personnel records do reflect that his military occupations include Redeye missile gunner and tank driver.  

In his September 2007, Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran indicated that his tinnitus had begun in 1975.  

At a February 2008 VA audiological examination for compensation purposes, the Veteran reported that he had initially experienced ringing of the ears in February 1976 after "a tank on his left fired."  The Veteran was diagnosed with tinnitus and bilateral sensorineural hearing loss.  The VA audiologist opined that:

Since tinnitus is associated with nerve damage from hearing loss and vet's service records indicate that his present hearing loss occurred after leaving the service, the tinnitus most likely occurred after leaving the service.  Based on the information above, vet's hearing loss and tinnitus were not caused by noise exposure in the service.  

In a January 2008 written statement, the Veteran clarified that he had experienced constant ringing of the ears after sustaining acoustic trauma when a tank fired next to him after he had removed his hearing protection.  

An April 2009 audiological evaluation from S. Ybarra, Au.D., notes that the Veteran presented a history of constant tinnitus.  The Veteran reported that he had experienced acoustic trauma during active service in 1974 when a 105mm howitzer fired next to him.  Ms. Ybarra opined that "it has been medically proven that tinnitus and sensorineural hearing loss with damage to the inner and outer hair cells of the cochlea can occur due to trauma such as that reported by [the Veteran]."  

At a November 2011 VA Ear examination for compensation purposes, the examiner determined that the Veteran's tinnitus "was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness."  The VA physician based his opinion upon the Veteran's "extensive military acoustic trauma & hi frequency hearing levels were not tested upon exit from service."  

At a November 2011 VA audiological examination for compensation purposes, the examiner concluded that it was "less likely than not (less than 50% probability) caused by or a result of military noise exposure."  The VA audiologist clarified that:

Based on these factors of normal hearing thresholds at military entry and separation and no significant high frequency thresholds noted, the Veteran's tinnitus is less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma during service.  

The Veteran asserts that he experienced tinnitus during active service secondary to his in-service artillery noise exposure which has persisted to the present time.  The Veteran is competent to describe his experience of ringing in the ears during and after service.  See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation).  The Board has no basis to question the Veteran's credibility.  

The Veteran's ringing of the ears has been diagnosed as tinnitus by competent VA and private audiological professionals.  The Veteran has reported that he experienced ringing in his ears in service which continued thereafter.  His statements are found to be competent, credible and probative.  While the February 2008 and November 2011 VA audiological evaluations concluded that the Veteran's tinnitus was not related to active service, Ms. Ybarra's April 2009 evaluation and the November 2011 VA Ear examination report determined that his tinnitus was consistent with his reported in-service acoustic trauma.  Given these facts, the Board finds that the evidence is in at least equipoise as to whether the Veteran's tinnitus is etiologically related to active service.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for tinnitus.  


III.  Bilateral Hearing Loss

The Veteran contends that he incurred chronic bilateral hearing loss as the result of his inservice acoustic trauma.  Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  The Court has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Board notes that the provisions of 38 C.F.R. § 3.303(b) (2012) are for application in the instant appeal as organic disease of the nervous system including sensorineural hearing loss, is a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a) (2012).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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.  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) (2012).  

Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such 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.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d) (2012).  

The Veteran's service treatment records make no reference to hearing loss.  At his November 1975 physical examination for service separation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
-
15
LEFT
10
10
10
-
15

In his September 2007, Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran indicated that his hearing loss had begun in 1975.  

At a February 2008 VA audiological examination for compensation purposes, the Veteran reported that he had initially experienced decreased hearing in February 1976 after "a tank on his left fired."  On examination, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
15
30
50
LEFT
20
25
30
55
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  The examiner opined that:

Vet's [service treatment records] did not support his claim of service-connected hearing loss and tinnitus.  His records indicated his present hearing loss occurred after leaving the service.  ...  Based on the information above, vet's hearing loss and tinnitus were not caused by noise exposure in the service.  

In a January 2008 written statement, the Veteran clarified that he had initially experienced hearing loss after sustaining acoustic trauma when a tank fired next to him after he had removed his hearing protection.  

The April 2009 audiological evaluation from Ms. Ybarra notes that the Veteran was diagnosed with severe bilateral sensorineural hearing loss.  She commented that "it has been medically proven that tinnitus and sensorineural hearing loss with damage to the inner and outer hair cells of the cochlea can occur due to trauma such as that reported by [the Veteran]."  

At the November 2011 VA Ear examination for compensation purposes, the examiner determined that the Veteran's hearing loss "was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness."  The VA physician's opinion was based upon the Veteran's "extensive military acoustic trauma & hi frequency hearing levels were not tested upon exit from service."  

At the November 2011 VA audiological examination for compensation purposes, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
35
50
LEFT
10
15
25
60
75

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 76 percent in the left ear.  The audiologist concluded that:

Based on these factors of normal hearing thresholds at military entry and separation and no significant high frequency thresholds noted, the Veteran's hearing loss disability is less likely as not (less than 50/50 probability) caused by or a result of acoustic trauma during service.  
The Veteran asserts that he experienced chronic hearing loss disability during active service secondary to his in-service artillery noise exposure which has persisted to the present time.  The Board finds that the Veteran's statements as to his inservice noise exposure to be both competent and credible.  Indeed, service connection has been established for tinnitus above based on such in-service noise exposure.  

The Veteran has been diagnosed with bilateral sensorineural hearing loss for VA purposes.  While the February 2008 and November 2011 VA audiological evaluations concluded that the Veteran's sensorineural hearing loss was not related to active service, Ms. Ybarra's April 2009 evaluation and the November 2011 VA Ear examination report determined that his hearing loss disability was consistent with his reported in-service acoustic trauma.  Given these facts, the Board finds that the evidence is in at least equipoise as to whether the Veteran's bilateral sensorineural hearing loss is etiologically related to active service.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for bilateral sensorineural hearing loss.  


ORDER

Service connection for tinnitus is granted.  

Service connection for bilateral sensorineural hearing loss is granted.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs