Citation Nr: 1321397 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-50 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to December 1974 and from August 2008 to May 2011. Additionally, between periods of active duty he had multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army Reserve. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is a result of military service. 2. The Veteran's tinnitus is a result of military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in the Veteran's active duty military service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). 2. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For VA compensation purposes, service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); § 38 C.F.R. § 3.6. Active duty is full time duty in the Armed Forces other than ACDUTRA. Id. With regard to National Guard and Reserve service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. INACDUTRA is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. The Board notes that there are also statutory presumptions in place that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where an appellant served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including bilateral hearing loss, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, these presumptions are not applicable to Reserve service; thus, they will not be discussed further. The Veteran reports injury to his hearing when a hand grenade simulator exploded near his right ear in August 1977 while on ACDUTRA in Officer's Candidate School. Additionally, he has spoken to exposure to various other sources of noise, including weapons fire, aircraft, vehicles, rocket engines, jet engines, tools, and tanks. While specific incidents of noise exposure are not documented in his service treatment records, the Board observes that the Veteran is competent to speak to the incident having occurred. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the Board finds it consistent with his circumstances of service. 38 U.S.C.A. § 1154(b). Therefore, the Board presumes that the Veteran suffered hazardous noise exposure in military service. 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, 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. The Court has held that service connection may be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). At the most recent audiological examination in August 2012, the pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 65 85 LEFT 15 20 70 75 95 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Therefore, the Veteran meets the criteria for a current hearing loss disability. The remaining question is whether the Veteran's current bilateral hearing loss is etiologically related to his military service. The Board notes that there are three conflicting opinions of record. In April 2008, a private audiologist stated that based on audiometric records and stated history, at least part of the Veteran's hearing loss was due to occupational noise exposure that occurred while on active duty from approximately August 1977 to 1987. First, the Board is unclear whether the audiologist was referring to noise exposure while performing his "occupational" duties during ACDUTRA or INACDUTRA or his civilian occupational duties performed in between periods of service. Additionally, the audiologist did not provide a rationale for the opinion. Therefore, the Board affords the opinion no probative weight. In contrast, an August 2008 VA audiologist opined that it is not at least as likely as not that the Veteran's present hearing loss was incurred in service, but the result of age and occupational noise exposure. The basis for the opinion was that the hearing shift in 1978 was within normal limits. However, the Board observes that the examiner did not address whether the hearing shift during the period of ACDUTRA constituted the onset of the Veteran's hearing loss. The Veteran was afforded a QTC audiological examination in January 2012, but the examiner did not offer an etiological opinion for the Veteran's hearing loss. Nevertheless, the Veteran was afforded another VA audiological examination in August 2012, and this examiner offered a positive nexus opinion for the Veteran's hearing loss. The examiner documented the Veteran's multiple occasions of injurious noise exposure from multiple causes throughout his military career. She also reported that the Veteran had no occupational noise exposure, noting that the Veteran had presented the examiner with letters from employers that indicated he was not not exposed to noise during civilian work. For these reasons, the examiner opined that the Veteran's hearing loss is due to his military noise exposure. Based on the above, the Board determines that the Veteran's current bilateral hearing loss was at least as likely as not incurred as a result of injury to his hearing during his periods of ACDUTRA and INACDUTRA Reserve service. Service connection for bilateral hearing loss is, therefore, granted. As for the Veteran's tinnitus, the Board observes that at an April 1978 service physical, the Veteran reported having had "ringing" since the August 1977 incident. He has also consistently reported that his tinnitus began during service after the incident, including at VA examination. Tinnitus is readily observable by lay persons, and the Veteran's assessment of tinnitus is sufficient to establish the diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). The Board notes that the August 2008 and August 2012 VA examiners and January 2012 QTC examiner who examined him for this claim assigned a diagnosis of tinnitus. The Board observes that the August 2008 VA examiner opined that the tinnitus was at least as likely as not related to the high frequency hearing loss. However, the examiner provided no rationale for that opinion. An opinion that contains only data and conclusions is afforded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, the Board affords this opinion no probative weight. In contrast a January 2012 QTC examiner opined that the Veteran's tinnitus was less likely as not associated with the hearing loss and at least as likely as not a result of the in-service noise exposure, citing several sources of noise exposure in service, including the grenade simulator exploding. This opinion was reiterated by the August 2012 VA examiner. In light of these facts, the Board determines that the evidence establishing a connection between the Veteran's tinnitus and his military service is at least in equipoise. The Veteran did not identify tinnitus as a problem prior to the August 1977 incident, and in April 1978 the incident was documented along with a complaint of "ringing" as a result. Moreover, the January 2012 QTC examiner and August 2012 VA examiner associated the tinnitus with the grenade incident in service. Accordingly, the Board finds that the Veteran's tinnitus is at least as likely as not a result of his military service. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the claim of entitlement to service connection for tinnitus is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs