Citation Nr: 1318235 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-49 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from March 1962 to June 1966. These issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in Louisville, Kentucky. In that decision, the RO denied claims for service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral sensorineural hearing loss had its onset during active service. 2. Resolving all doubt in the Veteran's favor, tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus. As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). The list includes "organic diseases of the nervous system." In Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit did not directly address whether sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system under 38 C.F.R. § 3.309(a), however, it is the established policy of VA to treat sensorineural hearing loss as an organic disease of the nervous system. See, Cromley v. Brown, 7 Vet. App. 376, 378 (1995); see also M21-1MR, Part III, Subpart iv, Chapter 4, Section B, Part 12.a. Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002 and Supp. 2012). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) 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, 492 F.3d at 1377. The Board must also assess the credibility, and probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. 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, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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). The Board finds that service connection for bilateral hearing loss and tinnitus is warranted here, as the evidence is in equipoise. This determination is based on the evidence in the file, to include the competent and credible statements of the Veteran. The Veteran contended in a May 2009 statement that bilateral hearing loss and tinnitus originally began in service. He stated he served aboard the USS Bristol which was part of the reserve training fleet; he helped train reservists. This job included training the reservists to operate guns. At the end of such training days his ears would be plugged and ringing. He had difficulty hearing for a few hours each time the guns were fired. In 1966 he was discharged; he continued to have ringing in his ears. In the 1970s, he specifically noticed hearing loss in his left ear and found that since that time his hearing overall had worsened. In a statement accompanying his December 2009 appeal form, the Veteran indicated that he had no hearing protection in service. After his discharge in 1966, he worked in plastics factory for four years; he worked as a press operator there for about one year. The noise in the factory was not as nearly as loud as the guns being fired in service. After working as press operator, he worked in a warehouse which was fairly quiet. He stated between 1966 and the mid-1970s ringing would occasionally occur about once a week and last for hours. Since that time, ringing has occurred more often and interfered with sleep. Upon enlistment in March 1962, a report of medical history (RMH) showed no hearing or ear, nose and throat (ENT) trouble. On the report of medical examination (RME) his hearing acuity was as follows (American Standards Association (ASA) units are converted to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 NA 10 LEFT 30 10 10 NA 30 He received a "1" under his physical profile. On his RMH, he stated he felt all right and denied ENT trouble or running ears. His prior occupation had been "student." In March 1962, a few days after enlistment, an audiogram showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 10 15 20 20 LEFT 20 20 20 20 35 In June 1966, the same month he separated, a RME showed that the Veteran's ears and ear drums were clinically normal. He received a 15/15 on a whispered voice test. In April 1977, at a reserve examination, a RME again showed the ears and ear drums were clinically normal. "Passed whisper test" is written on the form. On the RMH, the Veteran denied ENT trouble and hearing loss. His usual occupation was listed as "police officer/U.S. Postal Insp." The Veteran's DD 214 showed his rating was "SM-0000" or signalman, with related civilian occupational number "water trans." At separation his last duty assignment was listed as the USS Wallace L. Lind, but many of his service treatment records do reflect that he served aboard the USS Bristol. There is no evidence to contradict that the Veteran trained reservists in artillery initially in service. Post-service records show in May 2009 the Veteran saw a private audiologist. He stated he had ringing in mostly his left ear, but also slightly in his right ear. A hearing loss chart generally reflects the following hearing acuity measurements: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 40 50 LEFT 15 10 25 55 60 In August 2009, the Veteran was afforded a VA examination. He stated that he spent most of his service aboard a ship training reservists. During training, five inch deck guns were fired. He reported being exposed to gun fire several hours each day. He did not use hearing protection. After service, he worked for a plastics factory as a press operator for several years. He did not use hearing protection. Then he worked in security for two federal agencies for 20 years before retiring. He denied any recreational noise exposure other than seasonal use of lawnmowers. The Veteran reported constant tinnitus for the past 20 to 25 years. The examination yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 45 60 LEFT 5 15 15 50 55 The right ear speech recognition score was 92 percent and the left was 84 percent. There was bilateral sensorineural hearing loss. The examiner stated that the AHAC test was consistent with the results upon current examination. The examiner stated that the current bilateral hearing loss and tinnitus were less likely as not caused by or the result of noise exposure while in service. She stated that his enlistment examination from 1962 showed normal hearing in both ears; his separation examination showed normal bilateral hearing via whispered voice testing. She also noted the 1977 reserve physical which showed that he passed a whisper test and hearing was within normal limits. Also, at that time, he denied bilateral hearing loss and ear trouble. Service treatment records were silent for complaints of bilateral hearing loss or tinnitus; the first evidence of it was in 2009. Given 43 years that had passed, the examiner provided a negative opinion. The Board finds that a current disability has been established, as the Veteran has hearing loss for VA purposes under § 3.385 and that there is lay evidence of in-service incurrence of acoustic trauma established by the Veteran's lay testimony and service records. 38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167. Current tinnitus is also established by the Veteran's testimony. The Veteran stated that he had acoustic trauma in service and the Board finds him to be competent to state that he experienced hearing loss and ringing in his ears while in service. Additionally, the Board finds him to be relatively credible in his statements and finds them consistent with the available service records showing the circumstances of his service in the Navy. While the Veteran did deny hearing loss in 1977, his assertions are assigned some weight. See Jandreau, 492 F.3d at 1377. Indeed, it is plausible that, even if experiencing some difficulty hearing and/or ringing in the ears in 1977, the Veteran may have preferred not to mention this on his Reserve examination, for fear of not qualifying. Overall, the evidence, is still found to be at least in equipoise as to the question of continuity of symptoms. While the VA examiner provided a negative opinion, she did not consider the measurements of the Veteran's hearing after converting ASA units to ISO units, did not address the lack of a standard audiogram at separation and in 1977 during reserve service and seemed to mostly rely on the passage of time in coming to a conclusion. Mere passage of time is not dispositive of the issue, but is only one factor in deciding the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a result, the examiner's opinion is assigned limited weight. Given the above facts, including that the evidence shows there was some degradation in auditory acuity during service, the Board finds that the benefit of the doubt rule is for application here. Resolving doubt in the Veteran's favor, bilateral sensorineural hearing loss and tinnitus had their onset in service and service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs