Citation Nr: 1320084 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-18 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1956 to January 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2013, the Veteran, sitting at the RO, testified during a hearing conducted via videoconference with the undersigned Veterans Law Judge, sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. 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). FINDING OF FACT Resolving all doubt in the Veteran's favor, bilateral hearing loss and tinnitus were incurred during active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board notes that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Board finds that the Veteran is entitled to service connection for bilateral hearing loss and tinnitus, i.e., the benefits sought on appeal are granted. Therefore, no further discussion of the VCAA is warranted as to these claims, as any deficiency has been rendered moot. Similarly, the Board observes that, in May 2013, the Veteran submitted two private medical statements in support of his claims without a waiver of initial RO review. However, given the Board's determination herein, granting the claims on appeal, no further action is warranted regarding this new evidence. See e.g., 38 C.F.R. § 20.1304(c) (2012). II. Factual Background and Legal Analysis The Board has reviewed the record in conjunction with this case. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Veteran asserts that he was exposed to acoustic trauma from a mine explosion during a field artillery exercise at Fort Leonard Wood, Missouri, weapons firing, and other noise during military service. He believes that this exposure caused him to develop bilateral hearing loss and tinnitus In written statements and during his April 2013 Board hearing, the Veteran testified to his exposure to acoustic trauma during a field exercise when a mine blew up next to him. His ears and nose bled from the concussion and he was unable to hear. See Board hearing transcript at pages 2-3. The Veteran was taken to the base hospital and treated with ear drops. Id. at 6-7. He reported seeking treatment for hearing loss in the mid 1960s and ringing in his ears in the 1980s. See September 21, 2009 written statement. After discharge, the Veteran was a truck driver. See Board hearing transcript at 6. He testified that hearing aids were prescribed for him in approximately 1970. Id. at 4. Upon review of the record, the Board finds that the evidence is in relative equipoise as to whether a current hearing loss disability is due to service. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for bilateral hearing loss and tinnitus. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease 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); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of hearing pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Hearing loss disability is defined by regulation. 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, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above frequencies 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (court) stated 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. Id. at 159. The court explained that, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 1. The Veteran's service records show that his military occupation in service was as an auto repairman and his decorations and awards include a Sharpshooter (carbine) medal. Some of the Veteran's service treatment records are presumed destroyed in a fire, according to a February 2010 record from the National Personnel Records Center (NPRC). Available service treatment records reflect that, when examined for discharge, the Veteran's hearing acuity on the whispered voice test was reported as 15/15 in each ear and an ear abnormality was not noted. Post-service, private medical records and statements dated from 2002 to 2013 describe the Veteran's treatment for acute otitis externa and sensorineural hearing loss. Records from Toledo E.N.T., Inc., reflect the Veteran's treatment by ear, nose, and throat (ENT) specialists. When seen in June 2002, the Veteran's history of wearing hearing aids for 20 years was noted, as was his history of working as a truck driver and on a farm with noise exposure. The assessment included a long history of neurosensory hearing loss that required hearing aids. On private audiological evaluations at Toledo E.N.T., Inc., dated from October 2002 to July 2007, the Veteran's hearing loss, measured in pure tone thresholds, in decibels, was consistent with VA regulations. 38 C.F.R. § 3.385. In a July 2010 office record, D.M.M., M.D., an ENT specialist, noted the Veteran's "significant noise exposure" in service to truck and motor machinery. The Veteran had some tinnitus and decreased hearing for which he wore hearing aids. In an Addendum note, Dr. D.M. opined that the Veteran's military exposure and exposure in the tank battalion "more than likely" resulted in neurosensory hearing loss for which the Veteran wore hearing aids for 25 years. As a result of wearing the hearing aids, the Veteran had chronic otitis externa. In an April 24, 2013 signed statement, C.D.K., Au.D., an audiologist, said that he treated the Veteran for five years. The Veteran reported a history of noise exposure in service during which he was close to an explosion that caused temporary hearing loss and tinnitus, with epistaxis (nose bleed). He did not have hearing protection at the time. After service, the Veteran worked for a trucking company and, in approximately 1960, his employer noticed hearing problems. Hearing loss was identified for which he wore hearing aids since around 1965. In Dr. C.K.'s opinion, "a very real possibility exists...[that] noise exposure...contributed to [the Veteran's] hearing loss." This audiologist believed that the acoustic trauma and subsequent noise exposure during military service as described by the Veteran "should be carefully" considered. In an April 30, 2013, signed statement, Dr. D.M., the ENT specialist, reported treating the Veteran "for years" for hearing loss and problems associated with wearing hearing aids. Dr. D.M. opined that the Veteran's "hearing loss is more probable than not a result of the live ammo incident that occurred at Fort Leonard Wood in the mid 1950s training. [The Veteran] also has had significant [noise] exposure in the military in a tank battalion, motor pool, and repairing machinery." The Board observes that, based on the evidence of record including the credible testimony given by the Veteran, that he was exposed to a mine explosion during artillery training, and spent a good part of his military career working in proximity to weapons and machinery noise, a setting in which he was apparently exposed to considerable acoustic trauma, without ear protection. His exposure to acoustic trauma in service is conceded. Here the available medical evidence is in equipoise. When examined for discharge, a hearing abnormality was not noted. However, given the inexact nature of whispered voice testing conducted, it is highly unlikely that a small decrease in auditory acuity could be detected. In any event, in the 1960s hearing loss was reportedly noted by his employer. Thus, rather early in life, and not long following separation from service hearing loss manifested to a noticeable degree. Tinnitus was noted in the mid 1980s. Again, an overall reading of the opinions of record favor the claim. Moreover, the primary factual basis for such opinions, the in-service noise exposure is consistent with the Veteran's service and is not disputed. There is no accurate data provided in the separation examination from which to exclude the possibility of at least a slight decrease in auditory acuity at that time. In view of the totality of the evidence, including the Veteran's documented military occupational specialty and likely associated in-service noise exposure, his credible testimony during his Board hearing, and the July 2010 and April 2013 statements from Dr. D.M., and resolving reasonable doubt in the Veteran's favor, the Board is persuaded that the evidence supports his claims and service connection may be granted. As such, service connection for bilateral hearing loss and tinnitus is warranted and the Veteran's claims will be granted. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.385; Gilbert v. Derwinski, supra. ORDER Service connection for bilateral hearing loss is granted, subject to governing criteria applicable to the payment of monetary benefits. Service connection for tinnitus is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs