Citation Nr: 1318612 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-50 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 September 1966 to September 1968. These issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied claims of service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral 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 hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(b), 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, 1154(b), 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 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 (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. Additionally, a presumption is afforded a veteran if he or she is shown to have engaged in combat with the enemy in active service. 38 U.S.C.A. § 1154(b) (2012). If combat is shown, VA shall grant service connection for any disease or injury alleged to have been incurred in or aggravated by service as long as there is satisfactory lay or other evidence of service incurrence or aggravation and the injury or disease is consistent with the circumstances, conditions, or hardships of service. Id. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Federal Circuit has held that, while § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected, it does considerably lighten the burden on the veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service. Collette v. Brown, 82 F.3d 389, 392 (1996) (citations omitted). 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). 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 two VA examination reports which reach opposite conclusions, the competent and credible statements of the Veteran and consideration of § 1154(b). The Veteran contended in his January 2008 claim that bilateral hearing loss and tinnitus were due to exposure to artillery fire in service. When tanks fired, his ears would get stopped up and ring for the rest of the day. On his December 2009 appeal form, he stated that his civilian job was monitored by the Occupational Safety and Health Administration and not considered noisy enough to require noise protection. He believed his exposure in service caused the delayed onset of hearing loss and tinnitus. The Veteran's DD 214 reflected his military occupational specialty of a heavy vehicle driver; Combat Infantry Badge (CIB), and one year of foreign service. Based on this, noise exposure is deemed consistent with the circumstances of his service. The question for consideration is whether a current hearing loss disability is related to such exposure. Upon enlistment in April 1966, 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 30 20 5 NA 10 LEFT 40 15 5 NA 0 In September 1968, the RME showed a clinical evaluation of the ears and ear drums was normal. An audiogram showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 10 NA 5 LEFT -5 10 0 NA 5 The September 1968 RMH form showed the Veteran denied ENT trouble, running ears, and hearing loss. His usual occupation was listed as factory worker. The physician's summary stated there were no medical problems. Post-service records show in January 2008 the Veteran was seen for a VA audiology evaluation. He complained of gradual progressive hearing loss bilaterally and intermittent tinnitus bilaterally. After evaluation, the impressions were for the right ear, moderate to severe mixed hearing loss and for the left ear mild to profound mixed hearing loss. In May 2008, the Veteran attended a VA examination. He stated that his hearing problem existed since he came back from Vietnam and gradually worsened. While in service he was in the infantry and in basic training he fired small arms. In Vietnam, he was in combat firing M16 rifles and M79 grenade launchers. He was around heavy artillery, mortars and tanks with guns. He reported no noise exposure pre-service. Post-military, he worked in a factory for eight months, a service station for five years and at another factory for 26 years. He used forklifts and was not required to use hearing protection. He retired in 2007. Since retirement, he worked at a car dealership without much noise. He denied recreational noise exposure. He further denied other disorders associated with hearing loss. The Veteran also reported a history of tinnitus on the left side only, which was recurrent. This had existed for ten years or so. He did not recall the circumstance of onset. It happened once per week and lasted from a few seconds to a minute or two. Audiogram results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 60 70 65 LEFT 40 45 55 65 55 His speech recognition score was 92 percent in the left ear and 94 percent on the right. The diagnosis was bilateral mixed hearing loss. Word recognition scores were good bilaterally. The examiner stated that the service treatment records indicated that enlistment audiometric testing showed normal hearing for all frequencies except 500 Hertz (the examiner noted that the original measurements were likely ASA units). However, separation noted normal hearing for the frequencies bilaterally. He denied ENT problems or hearing loss. The examiner also noted that the Veteran was a heavy vehicle driver in service and that he was awarded a CIB (indicating combat noise exposure). The examiner stated that tinnitus in the left ear was not clinically significant. As for hearing loss, the Veteran denied hearing loss at separation and was not shown to have it via the audiogram. "The etiology of the mixed hearing loss is not clear to this examiner and such diagnosis would have to be done by an otolaryngologist." The examiner did state that the type of noise exposure the Veteran reported was expected to result in sensorineural hearing loss. There was also a possibility that the Veteran had sensorineural hearing loss initially and then experienced other ear disorders that resulted in the conductive hearing loss. Regardless, there was no hearing loss at the time of separation; the examiner gave a negative opinion. In September 2008, the Veteran received another examination from a contract audiologist. His main complaint was hearing loss. He also complained of ringing in the ears, but he did not know when it started. It was bilateral, recurrent, and occurred two to three times daily. Upon examination, it was noted that his acoustic reflexes were mildly abnormal. Hearing acuity measurements were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 70 70 LEFT 35 45 55 70 55 Speech recognition scores are 88 percent for the right ear and 90 percent for the left ear. The diagnosis was severe bilateral sensorineural hearing loss in both ears. He also had bilateral and recurrent tinnitus, which was as likely as not associated with the hearing loss. The audiologist concluded that the hearing loss and tinnitus were as least as likely as not a result of military service based on his military noise exposure to artillery fire and mortars (both of which cause hearing loss and tinnitus). It was noted that the claimant was advised to follow up with his primary care physician regarding abnormal acoustic reflex and tympanometry results. 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 which reflect combat service. 38 U.S.C.A. § 1154(b); Shedden, 381 F.3d at 1167. The Veteran is competent to state that he experienced 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 combat service and his position as a heavy vehicle driver. While the Veteran did deny hearing loss at separation, his assertions are assigned some weight. See Jandreau, 492 F.3d at 1377. Regarding the opinions of record, the Board finds both slightly incomplete in that the May 2008 opinion shows the Veteran has mixed hearing loss and appears to find that the etiology was unclear (although ultimately a negative conclusion was rendered). Comparatively, the second opinion lacks a full discussion of the audiogram at separation in coming to a determination in this case. As a result, these opinions are both assigned limited weight. Moreover, although the Veteran reported an onset of tinnitus only ten years prior to the May 2008 VA examination, it has been related by competent medical evidence to the hearing loss, which he claims to have been continuous since service. In this regard, a disability that is proximately due to a service-connected disability may itself be service-connected. 38 C.F.R. § 3.310. When considering the Veteran's competent and credible along with the two opposite opinions, plus the combat presumption under § 1154(b) the Board finds the claim is in equipoise. 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. (CONTINUED ON NEXT PAGE) 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