Citation Nr: 1322936	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  10-30 359	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine



THE ISSUES

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

2.  Entitlement to service connection for tinnitus.



WITNESSES AT HEARING ON APPEAL

The Veteran and B. P.



ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran performed active military service from August 1966 to July 1968.

This appeal arises to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, that denied service connection for a bilateral hearing loss disability and for tinnitus. 

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.


FINDINGS OF FACT

1.  The Veteran is not a combat veteran. 

2.  Acoustic trauma due to significant noise exposure in service has been shown.

3.  The Veteran's hearing was within normal limits at entrance and exit from active service.  

4.  Recent VA audiometric test results show a current bilateral hearing loss disability.  

5.  A VA audiologist has found an upward shift in hearing thresholds during active service.

6.  There is a medically sound basis to attribute a current bilateral hearing loss disability and tinnitus to loud noise in service.  


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).

2.  Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has remanded the case for development.  When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this case, all remand orders have been complied with.  

As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims.  Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed.  

Service Connection

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime).  38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012).  

Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships."  Caluza, 7 Vet. App. at 509.  

Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence.  38 C.F.R. § 3.303(a).

"Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  

The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).  In Walker, the Federal Circuit stressed that continuity of symptomatology, as discussed at 38 C.F.R. § 3.303 (b), establishes the link, or nexus, between the current disease and active service and serves as the evidentiary tool to confirm the existence of a chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker. at 1336.  

Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein.  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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 evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case.  More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration.  

Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides:

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, 4000 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 

The Veteran's DD Form 214 reflects that he served overseas as a field artilleryman and rocket crewmember.  The Form does not reflect that he served in a combat zone or otherwise was exposed to combat.  His service treatment reports (STRs) do not indicate any complaint related to hearing loss or tinnitus.  His entrance and separation examination reports reflect that his hearing remained within normal limits throughout active service.  

A November 2009 private audiometry report indicates that a bilateral hearing loss disability exists at 2000 Hertz and above.  

In February 2010, the Veteran underwent a VA audiometry evaluation.  A bilateral hearing loss disability was found, as well as a complaint of continuous tinnitus.  The VA audiologist conceded that while the Veteran's hearing thresholds remained within normal limits during active service, his hearing thresholds had changed during active service.  Concerning the etiology of a bilateral hearing loss disability, the VA audiologist stated, "It is my opinion that it is less as likely as not the veteran's current hearing loss and tinnitus are related to the change in his hearing thresholds the Veteran experienced in service and his exposure to artillery weapons firing noise which has been conceded." 

In April 2011, the Veteran testified before the undersigned Veterans Law Judge that he served in Okinawa and Korea.  He testified that firing artillery during active service caused ear pain, especially when the Little John missile system was fired.  He testified that he also was exposed to loud noise while riding in military transport aircraft and during light weapons firing.  He testified that he fired light weapons, "a whole lot" during active service.  He recalled that he noticed that his ears bled on the flight home from Asia.  He testified that after active service he worked in construction as a supervisor in an office and has fired his hunting rifle only about 30 times over the years.  He testified that his spouse mows the lawn. 

At the hearing, B. P. recalled that the Veteran displayed hearing difficulty as early as 1968.

Each branch of the Armed Services has listed its military occupational specialties and the corresponding probability of hazardous noise exposure related to an individual's occupational specialty.  The Duty MOS Noise Exposure Listing is available at: http://vbaw.vba.va.g...utymosnoise.xls.  In this case, the Veteran's duty Military Occupational Specialty code was 13D40.  His service department has deemed that it is highly probable that those whose MOS code begins with "13D" have had significant noise exposure. 

From the facts set forth above, it is clear that there is a current hearing loss disability and there is satisfactory lay and other evidence of exposure loud noise during service sufficient to adversely affect the auditory system.  Also present is competent lay testimony of continuity of symptomatology of bilateral hearing loss and tinnitus dating back to active service.  What is missing is a link or nexus between the current hearing loss disability and tinnitus and active military service.  

As the Federal Circuit explained in Walker, discussed above, because sensorineural hearing loss is not a listed chronic disease at 38 U.S.C.A. § 1101 (3) or 38 C.F.R. § 3.309(a), continuity of symptomatology of a hearing loss cannot establish the necessary link or nexus between the current disability and active military service, as it could if this were a listed chronic disease.  For that reason, the third element for service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement, remains to be satisfied.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the Court offered a method of satisfying the nexus requirement.  The Court stressed that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service (as in the present case), the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385.  VA rating authorities must then evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue.  For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.  Hensley, 5 Vet. App. at 159.  

In this case, the record clearly shows acoustic trauma due to significant noise exposure in service.  Competent lay evidence of continuous symptoms dating back to active service has also been presented.  A Veteran is competent to report symptoms of hearing loss and/or tinnitus as a disability because symptoms of hearing loss and tinnitus are capable of lay observation.  Charles v. Principi, 16 Vet. App. 370 (2002).  Consequently, the Veteran's testimony regarding hearing loss and tinnitus is sufficient to serve as evidence that the disabilities have existed since active service.  

Because the record shows significant noise exposure in service and, importantly, because the record shown an upward shift in tested thresholds in service, and a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385, VA rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.  Hensley, 5 Vet. App. at 159.  Although the VA audiologist found intercurrent causation, the Board finds no sound basis to attribute all of the hearing loss and tinnitus to post-service causation.  The Veteran testified that he had minimal post-service exposure to loud noise in construction, where he worked in an office environment, that he had minimal noise exposure while hunting, and that he was not exposed to lawnmower noises.  Considering this testimony, the Board concludes that there is a medically sound basis to attribute a current bilateral hearing loss disability and tinnitus to loud noise in service rather than to intercurrent causes.  

The Board must address the competency, credibility, and probative value of all evidence, medical and lay.  38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  The VA audiology opinion, to the extent that it finds a current hearing loss disability and tinnitus more likely due to post-service noise exposure, appears to be based on faulty facts.  While the audiologist suggests that post service construction work, rifle-firing, and lawn mowing caused the hearing loss disability, the testimony suggests otherwise.  Because of an inaccurate fact pattern, the probative value of the audiology opinion is lessened.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). 

The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity.  Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005

After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise.  The benefit of the doubt doctrine will therefore be applied.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App, at 55.  Service connection for a bilateral hearing loss disability and for tinnitus will be granted.










ORDER

Service connection for a bilateral hearing loss disability is granted. 

Service connection for tinnitus is granted.



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs