Citation Nr: 1318916 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-46 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1959 to May 1962. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. It is reasonably shown that the Veteran's bilateral hearing loss disability is related to his exposure to noise trauma in service. 2. It is reasonably shown that the Veteran has tinnitus which began in service and has persisted. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1131, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1131, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants the appellant's claims, there is no reason to belabor the impact of the VCAA on these matters, since any notice error or duty to assist omission is harmless. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran claims that his duties in service included serving in an artillery unit without the use of hearing protection, and that exposure to the noise associated with such duties caused him to develop hearing loss and tinnitus. The Veteran's DD-214 reflects that he served as a missile crewman in an artillery unit. On June 1959 service entrance examination, his ears were normal on clinical evaluation. Whispered voice testing revealed 15/15 hearing in both ears. There was no audiometry. On March 1962 service separation examination, a mild hearing defect was noted [reflected by a #2 in the physical profile for hearing]. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 25 NT 15 LEFT 30 20 20 NY 5 [The numerical values have been converted from the ASA values then in use to ISO values for comparison purposes.] In an associated report of medical history, the Veteran endorsed having had ear, nose, or throat trouble. Private audiometry reports submitted by the Veteran, dated from in 1962 to 1988, do not show a hearing loss disability (and are unaccompanied by any explanation regarding purpose). On December 2008 VA hearing screening, the Veteran reported difficulty hearing in background noise and in conversations. He reported noise exposure without hearing protection in the military. A history of tinnitus since 1962 was noted. The examiner found a normal sloping to moderately-severe sensorineural hearing loss (SNHL), and opined that based on the Veteran's report of military noise exposure and the configuration of the hearing loss, the hearing loss and tinnitus are at least as likely as not caused by or a result of military noise exposure. A February 2009 VA record notes that the Veteran had hearing aids issued. On May 2009 VA audiological evaluation, the Veteran reported he sustained military noise trauma including from firing range and missile range exercises. He stated that his work postservice included laboratory analysis as a technician (with little noise exposure), and his recreational noise exposure included use of power tools for gardening. He also reported a constant tinnitus. Audiometry revealed that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 40 50 LEFT 20 30 40 35 45 Speech audiometry revealed speech recognition ability of 48 percent in the right ear and 40 percent in the left. The audiologist stated that the examination findings were consistent with normal to moderately severe SNHL, bilaterally, and opined that the Veteran's hearing loss and tinnitus were less likely as not due to military noise exposure. She explained that the Veteran had normal hearing at separation and normal baseline hearing on private postservice audiometry in 1962. She also noted a 2005 study which concluded that the effects of noise exposure on the auditory system may not be detected until years after exposure and opined that while the impact of military noise exposure cannot be completely ruled out, it (the Veteran's current hearing loss) is less likely as not related to service. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the claimed disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hearing loss disability is defined by regulation. For the purpose 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. It is also well-established in caselaw (See Hensley v. Brown, 5 Vet. App, 155 (1993)) that service connection for hearing loss is not precluded where "hearing was within normal limits on audiometric testing at separation from service." The Court's discussion cited to, and acknowledged agreement with the [VA] Secretary's assertion "that if the record shows (a) acoustic trauma in service and audiometry showing an upward shift in tested thresholds in service, though still not meeting the requirements for a 'disability' under 38 C.F.R. § 3.385, and (b) postservice audiometry showing a hearing loss disability under 38 C.F.R. § 3.385, authorities must consider whether there is a medically sound basis to attribute the postservice findings to the injury in service, or whether they are more properly attributable to intercurrent causes." Hearing Loss It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. Based on his service in an artillery unit it may reasonably be found that he likely was exposed to hazardous level noise in service. What he still must show to establish service connection for his bilateral hearing loss is that it is related to his service/noise trauma therein. On VA audiological evaluation on December 2008, a VA audiologist opined that the Veteran's hearing loss is in a configuration consistent with noise exposure in service. Given that the Veteran is recognized as having been exposed to noise trauma in service, and that the examiner cites to clinical data (the configuration of the hearing loss)in support, and because the Board finds no reason to question the provider's expertise, the Board finds the opinion probative and persuasive evidence. The Board notes that a subsequent VA examiner opined (in May 2009) that the Veteran's hearing loss and tinnitus were less likely related to noise exposure in service. The opinion was based (at least in part) on a factual finding that the Veteran had normal hearing at separation; the examiner appears to have been unaware that 1962 audiometry was in ASA values, requiring conversion to ISO values, and that upon such conversion, the Veteran is shown to have a right ear hearing loss disability (as defined in 38 C.F.R. § 3.385) on separation and an apparent left ear puretone threshold shift (at least in the lower frequencies) during service. In fact, a Medical Board assigned a disability rating and a physical profile for defective hearing at separation . As the negative opinion offered in May 2009 is based on an inaccurate factual background, it is without probative value. While the Veteran is shown (by his own submissions) to have had normal audiometry in the interim, there is no probative evidence that such precludes a finding of a nexus between current hearing loss disability and service/events therein. In summary pertinent and probative evidence shows that the Veteran has bilateral hearing loss disability; that he was exposed to noise trauma in service; that he had a hearing loss disability noted at separation; and that competent evidence (a VA examiner's opinion) relates his hearing loss to his service. All of the requirements for establishing service connection are met. Service connection for bilateral hearing loss disability is warranted. Tinnitus As tinnitus is a disability capable of lay observation (see Charles v. Principi, 16 Vet. App. 370, 374) (2002)), and it has been reported by the Veteran and acknowledged by VA care-providers, it is shown that the Veteran has tinnitus. What remains necessary to establish service connection for the tinnitus is evidence of a nexus between such disability and the Veteran's service/exposure to noise trauma therein. One method of establishing nexus (and service connection) is by showing inception of the disability for which service connection is sought during service. See 38 C.F.R. § 3.303(a). The Veteran asserts his tinnitus began in service and has persisted. His service medical records do not note tinnitus; the Board must look to the other medical and lay evidence of record pro and con in this matter. The fact that tinnitus was not noted in the service treatment records does not preclude that it may have been present but not reported to medical care providers. Consequently, the credibility of the Veteran's accounts of onset of tinnitus in service becomes a critical factor in this matter. In support of the Veteran's claims are his many consistent reports in VA treatment records, including on VA examination, and in statements submitted, that he has had tinnitus since service. Lay evidence may be sufficient to establish a nexus (of claimed disability to service). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has provided fairly consistent accounts indicating that his tinnitus began in service,. A May 2009 VA examiner indicated (and it is not disputed) that tinnitus is a symptom associated with the Veteran's hearing loss; this decision grants service connection for hearing loss. Consequently, there is both credible and competent lay evidence that relates the t etiologically to a service connected disability. The requirements for establishing secondary service connection for tinnitus are met; and service connection is warranted. ORDER 1. Service connection for bilateral hearing loss is granted. 2. Service connection for tinnitus is granted. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs