Citation Nr: 1320935 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 10-48 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 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 ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the benefits sought. In May 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration. FINDINGS OF FACT 1. The Veteran has bilateral hearing loss disability for VA compensation purposes that is related to active service. 2. The Veteran has tinnitus that is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claims of service connection for bilateral hearing loss disability and for tinnitus, VCAA compliance need not be addressed as to these claims. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as sensorineural hearing loss or tinnitus as an organic disease of the nervous system, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not argue and the record does not show that the claimed disability was the result of participation in combat with the enemy, and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran claims service connection for bilateral hearing loss disability and tinnitus due to exposure to noise in service. In statements in support of his claims, the Veteran stated that in service he was exposed to noise without proper hearing protection while training with small arms and working with engineer equipment such as bulldozers, graders, cranes, and generators. He stated that he noticed impaired hearing and tinnitus during service. He also stated that after service he worked as a utility lineman. Service records reflect that the Veteran's occupational specialty in service was engineer equipment repairman. The service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, symptom, treatment, or diagnosis of impaired hearing or of tinnitus. Two audiograms were conducted in service, one on entrance examination in May 1965, and one during examination in May 1968 before separation from service. On the May 1965 entrance examination audiogram, the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 15, 15, 5, and 0, respectively, in the right ear, and 15, 10, 15, 5, and 5, respectively, in the left ear, when converted to International Standards Organization (ISO) standards. On the May 1968 separation examination audiogram, the puretone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz were 0, 0, 0, and 0, respectively, in the right ear, and 0, 0, 5, and 5, respectively, in the left ear, under the ISO standards. In February 2010 the Veteran completed a tinnitus questionnaire, reporting that he had had constant tinnitus since 1968 during service, which sounded like buzzing in both ears. He stated that he believed that noise exposure from firing small arms and loud engine noise had caused his tinnitus. In February 2010 the Veteran also completed a hearing loss questionnaire, reporting that he was hard of hearing, and that during service he was never issued proper hearing protection while firing on the range or working on engines. He reported that he had trouble hearing during service while on the firing range. He reported that he was not in combat during service. He indicated he was not exposed to noise from aircraft or flight operations, or from any attacks or friendly fire by mortar, artillery, bombing, rocket, mines, IED's, or torpedo. After service, the first audiogram of record was conducted by VA during VA examination in July 2010. During the examination the Veteran reported that he had tinnitus that was recurrent, and occurring four to five times weekly and lasting a few minutes to an hour. The Veteran reported a history of military noise exposure from small arms, generators, and heavy equipment; and vocational noise exposure after service in construction primarily as a carpenter exposed to power tools, and as a lineman, and recreational noise exposure from tractors. On examination, the audiogram shows that the puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were 20, 25, 30, 35, and 55, respectively, in the left ear, and 20, 25, 25, 25, and 45, respectively, in the right ear. The speech recognition scores were 100 percent in the right ear and 96 percent in the left ear. The diagnoses were bilateral sensorineural hearing loss and tinnitus. The VA examiner opined that it was less likely as not (less than 50 percent probability) that the current hearing loss and tinnitus were related to military noise exposure, because hearing was normal in service at separation and the date of onset of tinnitus was beyond service as reported by the Veteran. In May 2013 the Board obtained a medical expert opinion from the Veterans Health Administration on the matter of the likelihood that the current bilateral hearing loss disability or tinnitus was related to the Veteran's noise exposure in service. In the memo containing that opinion, a VA clinical audiologist provided a comprehensive discussion of all material factors associated with the rationale for the opinion. The factors discussed included the Veteran's military history with respect to noise exposure and audiology findings; his post service history of noise exposure, hearing loss and tinnitus symptoms, and audiology findings; and pertinent medical principles including risk factors including post service noise exposures. Based on the evidence discussed and the above considerations, the medical expert opined that it is at least as likely as not (50 percent probability) that the Veteran's hearing loss began as a result of military noise exposure. In this regard, she noted that the Veteran's significant histories of occupational and recreational noise exposure, as well as aging cannot be ruled out as contributing factors towards his current hearing levels. With respect to the Veteran's tinnitus, the medical expert noted the associated history on file discussed above, including that the Veteran had reported in his questionnaire of February 2010 that his constant tinnitus began in 1968 during service. The medical expert noted that tinnitus is commonly associated with noise injury. Based on the available audiometric evidence combined with the high probability of exposure to military noise-and noting that significant occupational and recreational noise exposure histories are also documented-the medical expert opined that it is at least as likely as not that the Veteran's tinnitus is causally related to the military noise exposure. The Board finds the May 2013 medical expert opinion from the Veterans Health Administration to be significantly more probative than the opinion contained in the July 2010 VA examination report. The latter is based on a complete review of the evidence and comprehensive consideration of these facts in light of relevant medical principles addressing the question of the likelihood of an etiological nexus between noise exposure in service and the Veteran's hearing loss disability and tinnitus. Whereas the July 2010 VA examiner merely considers only that the Veteran's hearing was normal at separation; and that the date of onset of tinnitus was "not related to military service." Neither rationale considers any more than that, and does not even consider that the Veteran has competently and credibly reported a continuity of hearing problems including tinnitus since service. Nor does it seem that the July 2010 VA examiner has contemplated that even if a hearing loss disability (as defined by VA under 38 C.F.R. § 3.385) or tinnitus was not shown during active service, the evidence may still connect a current disability to acoustic trauma injury due to earlier loud noise in service. As noted in the May 2013 medical expert opinion, the effects of impact/impulse noise exposure are more unpredictable in terms of variability in individual susceptibility and hearing loss manifestation. She further noted that noise-induced hearing loss results from damage to the hair cell structures of the inner ear, and that the date of onset of hearing loss should be distinguished from the date of first documentation. None of these considerations were taken into account in the opinion of the July 2010 VA examination report, which makes that opinion as evidence significantly less probative on the matter at hand than the evidence from the May 2013 medical expert opinion. Thus, there is sufficient evidence of both a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385 and a current tinnitus disorder; and there is evidence of an accumulation of exposures to hazardous noise in service. There is also medical evidence linking the two chronic conditions to acoustic trauma due to exposure to loud noise in service. Given the foregoing, including the strong evidence of exposure to military-related hazardous noise and the probative May 2013 VA medical expert opinion, the Board finds that, on affording the Veteran the benefit of any remaining doubt, service connection is warranted for bilateral hearing loss disability and for tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ GEORGE E. GUIDO, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs