Citation Nr: 1320155 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-15 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and January 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia and Columbia, South Carolina, respectively. Due to the location of the Veteran's residence, jurisdiction of his appeal is with the RO in Atlanta, Georgia. In October 2012, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In January 2013, the case was remanded to afford the Veteran a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the last supplemental statement of the case (SSOC), additional evidence has been received, without a waiver, in the form of a statement from the Veteran. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, the statement, while pertinent to the issues, is merely cumulative or duplicative of information already in the claims file and therefore, considered by the RO. Consequently, a remand is not necessary. FINDINGS OF FACT 1. The Veteran's preexisting bilateral hearing loss was permanently worsened beyond normal progression as a result of his active duty. 2. The Veteran's tinnitus is as likely as not related to his active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issues of service connection for bilateral hearing loss and tinnitus, no further discussion of these VCAA requirements is required with respect to these claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis The Veteran contends that he has bilateral hearing loss and tinnitus due to in-service acoustic trauma. Throughout this appeal, the Veteran has contended participation in the Tet Offensive while he was stationed in Vietnam when he guarded bunkers. The Veteran is competent to report in-service noise exposure. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds him credible. Accordingly, the Board concedes in-service acoustic trauma. The Veteran has indicated that his tinnitus began in service and has continued since service. See, e.g. October 2010 Hearing Transcript (T.) at 6. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Certain chronic diseases (e.g., sensorineural hearing loss) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is 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; or when the auditory thresholds for at least three of those 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. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2012). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran's STRs include his April 1966 pre-induction examination that reported his hearing acuity in puretone thresholds. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As this evaluation was conducted prior to October 1967, the Board has converted the ASA units to ISO units as shown below (in parentheses). The Veteran had puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) 15 (25) 35 (45) 25 (30) LEFT 5 (20) -10 (0) 5 (15) 25 (35) 35 (40) His induction examination in October 1966 showed that the Veteran had puretone thresholds (converted from ASA to ISO units), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5(15) 20 (30) 30 (40) 25 (30) LEFT 0 (15) 0 (10) 10 (20) 25 (35) 40 (45) The Board observes that for the purposes of applying the laws administered by VA, impaired hearing is 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; or when the auditory thresholds for at least three of those 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 (2012). In this case, the Veteran's pre-induction and induction examinations reveal that he had auditory thresholds of 40 decibels or greater at 3000 Hertz for his right ear and 40 decibels or greater at 4000 Hertz for his left ear. Furthermore, the April 1966 pre-induction examination shows that the Veteran was placed on an H-2 profile. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) [observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service); the "H" reflects the state of the "hearing and ear."]. Therefore, the Board concludes that the Veteran had a bilateral hearing loss disability as defined by VA at entrance to service. Although a September 1968 separation examination is of record, no audiometer findings were reported. According to post-service medical records, a private treatment record dated in July 1998 reveals that the Veteran's bilateral hearing loss was opined to be due to in-service acoustic trauma and his tinnitus was opined to be secondary to his bilateral hearing loss. The Veteran reported having tinnitus since Vietnam. This opinion does not indicate that the Veteran's preexisting hearing loss was taken into account. In August 1998, the Veteran reported that the onset of his tinnitus was between 1968 to 1970. The Veteran was afforded a VA examination in February 2013. He had puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 55 55 LEFT 30 40 55 60 65 The examiner was unable to provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The rationale was that hearing loss was present for both ears on both pre-induction and induction hearing tests; however, no hearing test was completed at separation from service. The examiner also opined that the Veteran's preexisting bilateral hearing loss was not aggravated beyond normal progression in military service. The Veteran reported that ear problems were first noticed in Vietnam during the Tet Offensive. The Veteran reported blowing out his ear drums twice in service. He reported that his tinnitus began in service. He reported his in-service noise exposure and recreational noise exposure of motorcycles, power tools/chain saws and radar radio noise. He also had occupational noise exposure of power tools and chain saws. The examiner noted that post-service treatment records dated from July 1998 to February 2004 showed fairly consistent, minimally progressive hearing loss. The examiner was also not able to provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. The rationale was that hearing loss was present for both ears on both pre-induction and induction hearing tests; however, no hearing test was completed at separation from service. The Veteran reported recreational and occupational noise exposure in addition to military noise exposure. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss and tinnitus is warranted. As discussed above, the Board concedes in-service acoustic trauma resulting from the Veteran's participation in the Tet Offensive. The evidence shows that he has current bilateral hearing loss and tinnitus and also supports a finding of a nexus. Beginning with the Veteran's bilateral hearing loss, for the reasons set forth above, the Veteran was shown to have had preexisting bilateral hearing loss at entry to service. The relevant question is whether his preexisting bilateral hearing loss was aggravated by his service. Clear and unmistakable evidence is necessary to show that the bilateral hearing loss was not aggravated by service. See 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this case, clear and unmistakable evidence has not been presented. The Veteran's discharge examination did not include an audiological examination and the VA examiner was unable to render an opinion as to whether the Veteran's bilateral hearing loss was aggravated by his service due to the lack of a discharge audiological evaluation. Throughout this appeal, the Veteran reported that his hearing problems began in service. The Veteran is competent to report experiencing hearing problems in service. Layno, 6 Vet. App. 465. The Board also finds him credible. Considering the Veteran's contentions that his hearing problems began in service, when affording him the benefit-of-the-doubt since no audiological evaluation was conducted at discharge to service, the Board finds that the Veteran's statements indicate an increase in disability during service. No medical professional has provided any opinion to indicate that an increase in disability was due to the natural progress of the disease. As noted above, the Veteran was afforded a VA examination specifically to determine whether his preexisting disability was aggravated by service; however, absent audiometer findings at discharge from service, the examiner was unable to render the requested opinion. In light of the Veteran's competent and credible contentions, when considering the lack of a discharge audiological evaluation, the Board is unable to conclude that clear and unmistakable evidence has been presented to show that the Veteran's bilateral hearing loss was not aggravated by service. As such, service connection for bilateral hearing loss is warranted. The Board also finds that service connection for tinnitus is warranted. In this case, the Veteran has reported that the onset of his tinnitus began in service; as discussed above, in-service acoustic trauma has been conceded. The Veteran is competent to report experiencing tinnitus that began in service. Id. The Board also finds the Veteran to be credible. Throughout this appeal, the Veteran has been consistent in his reports that his tinnitus began in service. He reported that tinnitus began in 1968 during his service in his June 2007 claim; reported to a private audiologist in August 1998 that his tinnitus began in 1968-1970; and reported to the February 2013 VA examiner that it began in service. After reviewing all of the evidence, the Board finds the Veteran's assertions that the onset of his tinnitus was in service are both competent and credible. The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, the Veteran has provided a competent and credible report of having tinnitus since in-service acoustic trauma. Therefore, the Board finds that the Veteran's reports alone are sufficient to establish a nexus. Therefore, in considering the Veteran's competent and credible contentions, the presence of current bilateral hearing loss and tinnitus disabilities, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds the Veteran's preexisting bilateral hearing loss was permanently worsened beyond normal progression during or as a result of his service and it is at least as likely as not that the Veteran has tinnitus that was incurred in service. The evidence is in favor of the grant of service connection for bilateral hearing loss and tinnitus. Service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs