Citation Nr: 1318813 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-13 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from July 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which denied service connection for the claimed disabilities. A Travel Board hearing was held in June 2011 with the Veteran at the RO in Denver, Colorado, before the undersigned Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) (West 2002) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board then remanded the case in October 2011 and again in November 2012 for further development. That development was completed, and the case was returned to the Board for further review. In March 2013, however, the Board determined that an opinion of a medical specialist from the Veterans Health Administration (VHA) was required, and the requested opinion was submitted in May 2013. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran's bilateral hearing loss is attributable to his in-service acoustic trauma. 2. The most probative evidence of record indicates that the Veteran's tinnitus is attributable to his in-service acoustic trauma. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1132, 1133, 1137 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required, including whether there is compliance with the duties set forth in 38 C.F.R. 3.103(c)(2) (2012) as to the Veteran's Board hearing. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection 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). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1131; 38 C.F.R. §§ 3.307, 3.309. The second and third elements may be established by showing continuity of symptomatology for chronic diseases specifically listed at 38 C.F.R. § 3.309(a) such as sensorineural hearing loss. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may be shown by demonstrating: (1) that a condition was "noted" during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition for disorders not noted on the entrance examination report, VA must show by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. VAOPGCPREC 3- 2003. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d 1372, at 1376-77. 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, 492 F.3d 1372, at 1376-77. 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for bilateral hearing loss and tinnitus. At the time of his June 2011 Board hearing, he asserted that he was an air traffic control specialist, qualified to work both the control tower and ground units, without hearing protection. He also asserted that he qualified with weapons and lived in a tent in Vietnam approximately 40 or 50 yards away from a mortar battery. The Veteran reported that he began experiencing difficulty with his hearing four or five years after separation from service, and that he began to notice tinnitus five years after separation from service. He noted that his post-service occupation was that of a ticket agent. The Veteran's service separation form, his DD-214, indicates that he served from July 1960 to April 1964, with 11 months of foreign service, and served as an air traffic control operator. The Board concedes that the Veteran experienced acoustic trauma in service as a result of his military duties. He has offered competent testimony as to his in-service experiences with noise exposure, and there is no indication that the Veteran is not credible. Layno, 6 Vet. App. 465, at 470. The Veteran's service treatment records include audiometric findings. Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. On Air Force enlistment examination in May 1960, prior to active duty, the Veteran's hearing was found to be 15/15 for whispered voice testing, bilaterally. However, during a Flying-Class II examination dated 10 days after entrance into active service in July 1960, puretone thresholds, in decibels (dB), were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) 30 (40) -5 (0) LEFT -5 (10) -5 (5) -5 (5) 0 (10) -5 (0) During an additional examination in March 1962, puretone thresholds were as follows: Hz 500 1000 2000 3000 4000 RIGHT 10 (25) -5 (5) -5 (5) 20 (30) 5 (10) LEFT -5 (10) -5 (5) -5 (5) 0 (10) -5 (0) Finally, during the Veteran's March 1964 separation examination, puretone thresholds were as follows: HZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 0 (10) 0 (10) 0 (5) LEFT 5 (20) 5 (15) 0 (10) 0 (10) 0 (10) The Veteran was afforded a VA examination in February 2008, and puretone thresholds were as follows: Hz 500 1000 2000 3000 4000 RIGHT 10 10 15 40 45 LEFT 15 10 10 30 50 Claims for hearing loss require that a Veteran have a certain level or amount of hearing loss before it will be considered a ratable disability for VA compensation purposes, and this is expressly defined by VA regulation. For the purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of these frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As the Veteran, during his February 2008 VA examination, demonstrated auditory thresholds in at least one of the specified frequencies of 40 dB or more in each ear, he meets VA's requirements for hearing loss as a disability, bilaterally. 38 C.F.R. § 3.385. In February 2008, the VA examiner concluded that the Veteran's bilateral sensorineural hearing loss and tinnitus were not related to service, as he had normal audiometric findings on separation. The Board sought a supplemental opinion and the examiner was asked to comment on whether the Veteran's bilateral hearing loss and tinnitus are the result of noise exposure in service, whether there was clear and unmistakable evidence that the Veteran had a preexisting right ear hearing loss on entrance in July 1960, and if so, whether there is also clear and unmistakable evidence that such preexisting right ear hearing loss was not aggravated beyond its normal progression during the Veteran's active service period. The Veteran underwent an additional examination with the same VA examiner in December 2011. The examiner concluded that the Veteran's right ear hearing loss preexisted service, and that there was clear and unmistakable evidence that it was not aggravated by service. In support of these conclusions, the examiner cited to the mild hearing loss at 3000 Hz noted July 1960 examination, which had improved to normal levels at the time of separation. She also stated that there was no other significant threshold shift in either ear from induction to separation. However, as seen above, while puretone thresholds at the 3000 Hz level in the right ear decreased from enlistment to separation, they also increased at the 500 Hz level from 10 dB to 25 dB during service. The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Court has also stated that the 38 C.F.R. § 3.385 "prescribes the level at which a hearing loss becomes a disability for purposes of entitlement to VA compensation.... [N]ot every change in hearing should be service connected." See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Therefore, the examiner's statement that the right ear threshold at 3000 Hz improved during service without any other significant thresholds shifts is inconsistent with the evidence, and the Board sought clarification. In a December 2012 statement, the same examiner reported that the Veteran's right ear hearing loss was not aggravated by service, as hearing was normal at separation and there is no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma. She further reasoned that there was mild hearing loss at one frequency at induction and there was no hearing loss at separation. As the VA examiner, in February 2008, December 2011, and December 2012, did not sufficiently consider Hensley, the Board, in March 2013, sought a VHA opinion from a specialist. In May 2013, the VHA specialist opined that there was no evidence that the Veteran's preexisting right ear hearing loss was aggravated beyond its normal progression during active service, specifically considering the puretone thresholds for the right ear at 500 Hz and 3000 Hz in July 1960 and March 1964. She reasoned that the threshold at 500 Hz was not a factor because the initial threshold was within normal limits and would not be considered in the range of hearing loss that could be aggravated, and that there was improvement of the threshold at 3000 Hz. The specialist reported that even though the first hearing test in the Veteran's service treatment records is from July 1960, and documents a 30 dB threshold at 3000 Hz in the right ear; the actual first entrance examination was dated in May 1960, conducted by whisper test, an unreliable measure of hearing sensitivity. She opined that the threshold at 3000 Hz in the right ear may have been better in May 1960 and decreased by July 1960 when the first hearing test was done, and that lack of evidence of a true hearing test in May 1960 should be considered. The VHA specialist also opined that even though the Veteran's final in-service hearing examination, in March 1964, reflected thresholds that improved and were within normal limits, the slight fluctuations in hearing while on active duty cannot be ruled out as evidence of noise exposure or acoustic trauma as a contributing factor to those fluctuations which may have resulted in hearing loss and tinnitus. She concluded that the Veteran's hearing loss and tinnitus are thus at least as likely as not due to the Veteran's military noise exposure. She also cited the Veteran's 25 dB decrease in the right ear at 6000 Hz, and 10 dB decrease in the right ear at 4000 Hz in March 1962, and discussed the Veteran's in-service and post-service noise exposure. The VHA specialist responded to the Board's inquiry as to whether the Veteran's preexisting right ear hearing loss was not aggravated beyond its normal progression during active service in the negative, based on the Veteran's improvement of thresholds at 3000 Hz from 30 dB in July 1960 to 0 dB in March 1964. She also specifically discussed that while the Veteran's true entrance examination in May 1960 included results of whisper voice testing demonstrating normal hearing, such a test is unreliable and the Veteran may well have had better hearing in the right ear prior to his in-service July 1960, albeit 10 days into active service, hearing test. While prior examiners and the Board itself has referred to the Veteran's right ear hearing loss as preexisting active service, by the VHA specialist's opinion in essence indicating that the Veteran may have had better hearing at induction in May 1960; there is no clear and unmistakable evidence demonstrating that right ear hearing loss existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). The clear and convincing standard is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Thus, the Veteran is presumed sound at entry as to bilateral hearing loss. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes here that the Veteran's in-service hearing tests did not demonstrate, in the left ear, the threshold shifts contemplated by Hensley, and thus, further inquiries were limited to the Veteran's right ear. The May 2013 VHA specialist's opinion is the most probative medical opinion of record, as it considered all pertinent in-service hearing tests and provided the most detailed and reasoned argument. Such serves as positive evidence to support a grant of service connection for bilateral hearing loss and tinnitus. Gabrielson, 7 Vet. App. 36; Sklar, 5 Vet. App. 140. In this regard, while the VHA specialist was asked only to render opinions as to the Veteran's right ear hearing loss and tinnitus, she included reasoning in her positive opinion that applies to the Veteran's left ear hearing loss as well. Specifically, while the past VA examiner provided as support for her negative nexus opinions as to the Veteran's left ear hearing loss that there was no significant shift in thresholds during service, the VHA specialist specifically cited the slight fluctuations present during service as evidence of hearing loss. Both the Veteran's in-service right and left ear hearing tests demonstrated slight fluctuations. In this case, there is current evidence of bilateral hearing loss and tinnitus disabilities, as well as evidence of in-service acoustic trauma. Significantly, the most probative medical opinion of record, the VHA specialist's opinion dated in May 2013, is positive as to the relationship between the Veteran's service and his current bilateral hearing loss and tinnitus. As such, there is no need to consider the Veteran's lay statements as to incurrence and continuity of symptoms and whether any bilateral sensorineural hearing loss was manifest to a compensable degree within one year of separation from active service. The claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 50 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs