Citation Nr: 1322767 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 12-02 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee 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 M. N. Hyland, Senior Counsel INTRODUCTION The Veteran had active duty service from June 1950 to June 1953. The Veteran's service records reflect that he was awarded the Combat Infantryman Badge, the Korean Service Medal with 3 Bronze Stars, and the Bronze Star Medal with Valor Device. 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). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during active duty service. 2. The Veteran experienced acoustic trauma in combat during active duty service. 3. The Veteran's current hearing loss disability had its onset during active duty service. 4. The Veteran's current tinnitus disability had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(a), 1154(b), 5107(b) (West 2002); 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, 1154(a), 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The decision below grants entitlement to service connection for hearing loss and tinnitus. This is considered a full grant of the benefits sought. As such, no further discussion of VCAA is necessary. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). The Board notes that sensorineural hearing loss is considered an organic disease of the nervous system for purposes of inclusion in 38 C.F.R. § 3.309(a); tinnitus is not. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensorineural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With hearing loss claims, VA may only find hearing loss 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 are less than 94 percent. 38 C.F.R. § 3.385. A June 2010 VA audiological examination report reflects that the Veteran was diagnosed with bilateral sensorineural hearing loss and bilateral tinnitus. The audiometric testing from this examination showed auditory thresholds for each of the frequencies between 1000 and 4000 at 40 or greater. The Veteran meets the requirement of having a current hearing loss disability, as well as a current diagnosis of tinnitus. Thus, the salient question remaining is whether the hearing loss and tinnitus disabilities are related to the Veteran's active duty service. As noted in the introduction, the Veteran's service records reflect that he was awarded a Bronze Star Medal with Valor Device, a Combat Infantryman Badge, and a Korean Service Medal with 3 Bronze Stars. These awards demonstrate that the Veteran engaged in combat with the enemy. For injuries that are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran contends that his bilateral hearing loss and tinnitus are related to service. He maintains that he experiences bilateral hearing loss and tinnitus resulting from hazardous military noise exposure to specifically include noise in combat. See August 2010 Notice of Disagreement. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). It is initially acknowledged that the Veteran's service treatment records (STRs) do not show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. The STRs also do not show complaints, findings, or diagnoses of tinnitus. Nevertheless, the Veteran is a combat Veteran and alleges he incurred acoustic trauma during combat. This allegation is consistent with the circumstances of the Veteran's military service, particularly in light of his many decorations for combat valor. As such, the Board finds that the Veteran incurred acoustic trauma during combat in service. In statements submitted to the Board, to include the August 2010 Notice of Disagreement, the Veteran alleges that his hearing loss and tinnitus symptoms began during military service in either 1952 or 1953. The Board finds that the Veteran is both competent and credible to report hearing problems and tinnitus (ringing in his ears) after exposure to acoustic trauma during service. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses. Additionally, the Board notes that it may not reject the credibility of the Veteran's lay testimony regarding the in-service onset of hearing loss and tinnitus simply because it is not corroborated by contemporaneous medical records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran's statements are considered competent and credible. As to evidence of a relationship between the current bilateral hearing loss and tinnitus and the Veteran's hearing loss/tinnitus symptoms while on active duty, the Board finds the Veteran has provided competent and credible evidence in the form of his statements on appeal which are described above. These statements and reports by the Veteran reflect that he experienced difficulty with hearing and tinnitus in active military service and since. See Layno v. Brown, 6 Vet. App. 465 (1994). With respect to competent medical opinions of record, the Veteran reported at the June 2010 VA audiology examination that he could not recall exactly when his hearing loss and tinnitus symptoms began, but that they had been longstanding, and began at least 30 years prior. The June 2010 VA examiner provided an opinion that the Veteran's current hearing loss and tinnitus were less likely as not the result of his military duty. The examiner's rationale for this negative etiology opinion was because the Veteran could not state when the tinnitus and hearing loss began, and because of the presence of "possible" post-service occupational noise exposure and adult onset diabetes. The Board does not find the VA examiner's rationale to be persuasive. The examiner appears to base his negative opinion on the "possible" presence of post-service occupational noise exposure, but provides no explanation or description of this alleged post-service noise exposure, nor an explanation of why mere "possible" post-service noise exposure is more likely to have caused hearing loss and tinnitus than in-service acoustic trauma from combat. Additionally, the examiner appears to give great weight to the fact that the Veteran could not precisely recall when his hearing loss and tinnitus symptoms began, and appeared to consider this fact as weighing against the Veteran's claim. The Board does not agree that this failure to provide a date of onset is fatal to the Veteran's service connection claim, especially when his report of the symptoms being longstanding and commencing at least 30 years ago is not inconsistent with or in contradiction to his other statements of record that his symptoms began in service, which would be more than 30 years prior. Also of note, the impact, if any, the Veteran's diabetes would have on his hearing loss and tinnitus is not clear, and the examiner does not address this issue in the examination report. Accordingly, the Board finds that the examination report is inadequate for adjudicative purposes, and is of no probative value. In light of the foregoing, what remains for the Board to consider and weigh are the following: the Veteran's service treatment records, showing no hearing loss, versus the service records confirmation of combat service, which supports exposure to artillery gunfire, explosions, and aircraft noise; the extended post-service period without complaint or treatment versus the absence of demonstrated post-service acoustic trauma; and an inadequate medical opinion versus the competent and credible statements of the Veteran attributing his hearing loss to service. Under such circumstances, the Board finds that the evidence is in equipoise. Therefore, the benefit of all doubt is granted in the Veteran's favor. Service connection is warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. As noted above, tinnitus is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established based on continuity of symptomatology; however, the claim may be established if it is found that the disability had its onset in or is related to service or an event of service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a current diagnosis of tinnitus and the competent, credible and persuasive evidence of record sufficiently places the onset of this condition in service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. After resolving all reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service. It follows that entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs