Citation Nr: 1318087	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  12-00 663	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and Spouse


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1954 to December 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

In May 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ).  A transcript of that proceeding has been associated with the Veteran's claims file.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

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 all reasonable doubt in the Veteran's favor, a current bilateral hearing loss disability incurred in service.

2.  Resolving all reasonable doubt in the Veteran's favor, a current tinnitus disability incurred in service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002);  38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for service connection for tinnitus are met.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002);  38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

In this decision, the Board grants the claims for service connection for bilateral hearing loss and service connection for tinnitus disabilities.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary.

II. Analysis 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

For 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, 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 Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service.  However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

Service treatment records are negative for complaints or findings of hearing loss or tinnitus.  The enlistment and separation examination reports reflect normal hearing bilaterally.  Service records reveal the Veteran's military occupational specialty was a mechanic.  

An audiological examination was conducted by a VA audiologist in September 2010.  The Veteran reported noise exposure from spending his military service as a jet engine mechanic.  He reported that he noticed "buzzing" in his ears and the onset of tinnitus during service.  Clinical examination revealed pure tone thresholds in both ears that met the criteria for a hearing loss disability for VA compensation purposes.  See 38 C.F.R. § 3.385.  The audiologist diagnosed the Veteran with bilateral hearing loss.  The examiner reported sensorneural hearing loss in both ears at a range of 2000 to 4000 Hertz.  The audiologist opined that the current hearing loss was less likely as not caused by or a result of the Veteran's noise exposure in service.  The rationale was that the separation examination showed that all the frequencies tested were within normal limits.  Tinnitus was also diagnosed as consistent with hearing loss.  The audiologist opined that Veteran's subjective constant tinnitus could be considered consistent with the Veteran's current hearing loss. 

The Veteran submitted a private audiological examination dated February 2011.  The private examiner noted that there was mild low frequency conductive loss sloping to a severe sensornueral hearing loss.  The examiner also reported that steeply sloping high frequency loss with tinnitus is generally associated with noise exposure.   

The Veteran and his spouse testified at a May 2013 hearing.  He testified that he first noticed his hearing acuity deteriorating in service due to his military occupational specialty as a mechanic which exposed him to noise from jet engines on daily basis.  The Veteran stated that he had to test the engines, running at 100 percent, without ear protection.  After service, he attended college and he stated that he often had to read the professors lips to understand what was being said.  If the professor turned his back towards the Veteran, he could not hear the professor.  The Veteran's children, other family members and friends have submitted lay statements attesting that the Veteran demonstrated difficulty hearing after service.  The Veteran's brother indicated that he noticed the Veteran's difficulty after he was discharged.  He stated that he would have to repeat portions of conversations to the Veteran.  He also observed the Veteran's difficulty hearing when he was not facing the person speaking and difficulty understanding people in large groups.  The Veteran's brother noted that the Veteran would describe ringing in his ears, which he said exacerbated his hearing.  His son noted that the Veteran would stand close to the person speaking and read their lips to understand what was being said.  His daughter stated that the Veteran would often respond incorrectly when asked a question because he had difficulty hearing and understanding the questions being asked. 

The Veteran's testimony, and supporting witness statements, establishes a continuity of difficulty with his hearing and tinnitus since service.  His testimony and the supporting witnesses' statements are competent and credible.  See 38 U.S.C.A. § 1154(a).  Such a report of recurrent symptoms can serve to satisfy the requirement for a nexus between an in-service event and a current disability.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  The Board is mindful of the negative nexus opinion proffered by the VA examiner; however, the Board also notes that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Further, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between a veteran's current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).  In this case, the Board finds the evidence sufficiently establishes a nexus between the Veteran's current hearing loss and tinnitus disabilities and his in-service exposure to loud noise.  Accordingly, all reasonable doubt is resolved in the Veteran's favor, and service connection for hearing loss and tinnitus is granted.  


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs