Citation Nr: 1320398	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  09-47 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to service connection for tinnitus.  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from September 1967 to August 1969, including honorable service in Republic of Vietnam.   

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss and tinnitus. 

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.


FINDINGS OF FACT

1.  There is an approximate balance of positive and negative evidence as to whether the Veteran's current bilateral sensorineural hearing loss is related to his military service.

2.  There is an approximate balance of positive and negative evidence as to whether the Veteran's current tinnitus is related to his military 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. §§ 1110, 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. § 1110 (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. § 1110; 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 tinnitus is arguably a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease 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 experienced significant acoustic trauma in service, and has experienced hearing loss and tinnitus ever since.  He asserts that he was not offered hearing protection while in service.  The Veteran's service personnel records reflect that his military occupational specialty was assistant personnel management specialist.  He also had service in the Republic of Vietnam.  

A review of the Veteran's service treatment records (STRs), shows no complaints of hearing loss or tinnitus.  

Upon induction examination in September 1967, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0
X
0
LEFT
15
15
5
X
5

At service separation examination in August 1969, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

In a July 1979 treatment record, the Veteran reported being knocked unconscious following mortar fire during service.  He recalled bleeding from the left ear.  

Following service, it appears that the Veteran first complained of hearing problems during a September 2007 VA audiology consult.  He reported that he had significant in-service noise exposure, tinnitus, and post-service left-sided stroke in 1979.  He denied any occupational or recreational noise exposure, recent or recurrent ear disease, vertigo, familial history of hearing loss, difficulty with swallowing/speech, changes in taste or smell, or prior use of amplification.  

Audiometric testing was performed during this September 2007 consult, but the audiologist did not list the thresholds.  She indicated that the Veteran had mild sloping to severe high frequency sensorineural hearing loss in the right ear, and moderate sloping to severe high frequency sensorineural hearing loss in the left ear.  Speech discrimination scores were 72 percent in both ears.  The audiologist's assessment noted that these scores could not be used for rating purposes, but indicated that today's findings were consistent with the Veteran's history of military noise exposure.  She opined that the Veteran's current bilateral hearing loss is more likely than not due to in-service acoustic trauma.  She then qualified her opinion by stating "unless hearing evaluations performed at the time of and/or some date after his military discharge are available to document that [his] hearing was within normal limits or significantly better at that time."  

The Veteran was not afforded a VA examination to determine the etiology of his bilateral hearing loss or tinnitus.  He has contended that he has not been able to hear properly since serving in Republic of Vietnam.  He did not remember being afforded a hearing test at service separation as he was discharged to return to the U.S. for a family illness.  

In October 2012, the Veteran submitted a statement from a private audiologist.  The audiologist listed the Veteran's in-service hearing complaints and head injury.  Audiometric testing revealed, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
25
40
75
LEFT
70
65
70
75
80

Speech audiometry revealed speech recognition ability of 52 percent in the left ear and 88 percent in the right ear.  The private audiologist indicated that the Veteran had asymmetric hearing loss, and opined that more likely than not his extensive, unprotected noise exposure during service (and head injuries) "could have contributed to his hearing loss and tinnitus."  

As an initial matter, the October 2012 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, specifically while serving in Vietnam.  Significantly, the Veteran's personnel records confirm that was stationed at one time in Republic of Vietnam.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to some 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 September 2007 VA audiologist and October 2012 private audiologist essentially stated that the Veteran's hearing loss may be related to his military service.  These are both speculative opinions as the September 2007 audiologist provided a conditional positive nexus opinion, and the October 2012 private audiologist indicated that his noise exposure in service "could have" caused his current bilateral hearing loss.  Thus, the Board finds that these two purported opinions lack probative value.  

The Board finds, however, 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.  Additionally, he has reported continued difficulties hearing since service.  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 both bilateral hearing loss and tinnitus.  See 38 C.F.R. § 3.303(b).

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 is granted.

Service connection for tinnitus is granted.  



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs