Citation Nr: 1319315	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  10-30 409	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel
INTRODUCTION

The Veteran served on active duty from January 1956 to January 1960.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 

In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Chief Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file. 

In November 2012, the Board remanded the Veteran's claim for further development.  The requested action was taken and the case has since been returned to the Board for adjudication. 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

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.  There is an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability that was incurred in service.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran has bilateral tinnitus that was incurred in service.

CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Resolving doubt in favor of the Veteran, tinnitus was incurred in active duty military service.  38 U.S.C.A. § 1131 (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 describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In light of the favorable decision herein as to the issues on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Service connection may be awarded for certain chronic diseases based on a continuity of symptomatology since service.  38 C.F.R. § 3.303(b).  A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Organic diseases of the nervous system such as sensorineural hearing loss and tinnitus are arguably chronic diseases under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the diseases manifest to a degree of ten percent or more within one year from the date of separation from service.  38 C.F.R. § 3.307.  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  For the 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, or 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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Factual Background and Analysis

The Veteran contends that he has bilateral hearing loss and tinnitus that are attributable to significant noise exposure during service.  He endorsed daily flight-line noise as an aircraft mechanic during his service in the Air Force.  The Veteran relates that he was not provided with hearing protection when he was working on the flight line.  

A review of the Veteran's service treatment records (STRs) shows, no complaints of any hearing related problems.  Whispered voice testing at discharge was within normal limits, and audiological testing revealed normal hearing without any threshold shifts.  

The first evidence of record showing treatment for hearing loss complaints is a private ENT treatment record, dated in July 2008.  The treating professional indicated that the Veteran has complained of hearing loss for a long period of time, and first noticed it when he was discharged from the Air Force in the early-1960s.  He reported bilateral tinnitus that has been going on "forever."  The Veteran reported wearing hearing aids for the last 20 years.  He endorsed extensive noise exposure in the military as he was an aircraft mechanic.  He recalled working on and around jets constantly with lots of noise and no ear protection.  He also indicated that he worked around power tools, chain saws, and woodworking machines without hearing protection.  The Veteran endorsed some mild occupational noise exposure as an electrician.  

Audiological examination revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
90
100
100
LEFT
35
45
95
100
100

Speech discrimination testing revealed 48 percent in the right ear and 52 percent in the left ear.  
Following physical examination, the private ENT indicated that the Veteran had profound bilateral sensorineural hearing loss.  He opined that the Veteran's hearing loss is most likely a combination of his extensive noise exposure during service and his mild, post-service noise exposure.  The ENT also noted some post-service contributors to his bilateral hearing loss, such as his use of power tools and a pattern of some presbycusis.  Ultimately, the ENT found that given the early onset of the Veteran's hearing loss, it is most likely caused by his in-service noise exposure.  

The Veteran was subsequently scheduled for a VA audiological examination in January 2009, during which puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
80
95
105+
LEFT
30
55
85
105
105+

Speech recognition testing revealed scores of 68 percent in the right ear and 56 percent in the left.  

During the examination, the Veteran again reported in-service noise exposure from aircraft, jet engines, after burners, and working in a shop on the flight line for 28 months.  Post-service, he described noise from his work in a lumbar yard and as an electrician.  Recreationally, he used power tools, drills, saws, and had minimal motorcycle riding and hunting.  He endorsed experiencing tinnitus for the past 40+ years.  

Following physical examination and interview of the Veteran, as well as review of the claims file, the examiner diagnosed the Veteran as having mild to profound bilateral sensorineural hearing loss and tinnitus.  The examiner attributed the Veteran's tinnitus to his hearing loss.  The examiner opined that the Veteran's current bilateral hearing loss disability and tinnitus are less likely than not a result of his military noise exposure.  The examiner based her opinion on the Veteran's history, as well as the severity and configuration of his hearing loss.  She further indicated that the Veteran's hearing loss is most likely due to a combination of many years of occupational and recreational noise exposure after the service as well as presbycusis.  She also cited to treatise evidence indicating that "noise exposure alone usually does not produce a loss greater than 75 decibels (dB) in high frequencies, and 40dB in lower frequencies."  

In a December 2009 letter, the Veteran's treating physician submitted a statement opining that the Veteran's bilateral hearing loss is "very likely" caused by his in-service exposure to persistent and recurrent loud noise from aircraft engines.  The treating physician based his opinion on the Veteran's lay statements of the extent of his in-service noise exposure and that he was not provided hearing protection during service.  

In his substantive appeal, the Veteran indicated the he worked on the flight line for four years, 10 to 12 hours a day, and without hearing protection.  He recalled that when he got off duty, his ears would ring and his hearing would be diminished.  He stated that his hearing would eventually return, but his tinnitus never stopped.  The Veteran further indicated that he never had as much noise exposure after service as he had experienced in service.  

During the Veteran's May 2012 hearing, he reported first seeking treatment for hearing problems in the mid-1970s.  He again endorsed post-service occupational and recreational noise exposure, but nothing to the level of the jet engine noise he encountered during service. 

As an initial matter, the July 2008 audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes.  38 C.F.R. § 3.385 (2012).

Therefore, the question to be decided in the present appeal is whether such hearing loss and tinnitus are associated with the Veteran's active duty.  With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma from the sounds of jet engines and other aircraft while performing duties of his military occupational specialty (MOS) as a mechanic, accessory, and equipment repairman in the Air Force.  This MOS was listed on his DD Form 214.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service.  Thus, the Board does not dispute that he likely experienced acoustic trauma during service.

With respect to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and tinnitus and his military service, the Board acknowledges that the January 2009 VA examiner stated that the Veteran's hearing loss was unrelated to his acoustic trauma during service and likely had its onset after service.  This was followed by a detailed rationale.

However, the Veteran has submitted two positive nexus opinions both from his treating physician and ENT.  They both found that the Veteran's current hearing loss is related to his significant in-service noise exposure.  The July 2008 ENT even indicated that the early onset of the Veteran's bilateral hearing loss shows that it is likely due to his acoustic trauma in service.  

The Board finds the VA examiner's opinion, as well as the private opinions, are probative as to the issue of nexus.  As they are based upon the credible history reported by the Veteran and include a detailed rationale for the conclusions reached, the Board assigns them equal probative weight.  

Additionally, the Veteran has consistently reported that he first experienced hearing loss and bilateral tinnitus in service, and they have continued since.  Indeed, he reported that during service his hearing would come back from time to time, but his tinnitus never abated.  

The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing and symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  

As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his bilateral ears, and the Board finds that his assertions are credible.  Specifically, the Veteran is competent to report symptoms of tinnitus such as ringing or buzzing in the ears continuously since service.  The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service which caused ringing in his ears, has continued to experience ringing in his ears since then, and now has a diagnosis of tinnitus.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Continuity of symptomatology is, therefore, established for tinnitus.  See 38 C.F.R. § 3.303(b).

Additionally, the January 2009 VA audiologist associated the Veteran's tinnitus with his bilateral hearing loss.  After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability and tinnitus cannot be disassociated from each other or his in-service exposure to acoustic trauma.  Thus, the medical and lay evidence for the claims and the evidence against the claims are at least in equipoise.  Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss and tinnitus is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for bilateral hearing loss disability is granted.

Service connection for tinnitus is granted.



____________________________________________
C. TRUEBA
Chief Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs