Citation Nr: 1322997 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-13 597A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971, including service in Vietnam; he also had subsequent Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal was previously remanded by the Board in July 2010 and November 2012. FINDINGS OF FACT 1. The evidence reasonably establishes that the Veteran has bilateral hearing loss that is related to noise trauma in service. 2. The evidence reasonably establishes that the Veteran's tinnitus is related to noise trauma in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred during service. 38 U.S.C.A. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was incurred during service. 38 U.S.C.A. § 1110 (West 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, including the records in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss (organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For 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 at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. It is also well-established in caselaw (See Hensley v. Brown, 5 Vet. App. 155 (1993)) that service connection for hearing loss is not precluded where "hearing was within normal limits on audiometric testing at separation from service." The Court's discussion cited to, and acknowledged agreement with the "[VA] Secretary's assertion" that if the record shows (a) acoustic trauma in service and audiometry showing 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) postservice audiometry showing a hearing loss disability under § 3.385, authorities must consider whether there is a medically sound basis to attribute the postservice findings to the injury in service, or whether they are more properly attributable to intercurrent causes. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's DD Form 214 shows that the his military occupational specialty (MOS) was a field artilleryman and that he served in Vietnam. The Veteran's June 1969 service induction examination revealed audiometry results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 LEFT 5 5 5 5 His ears were clinically normal and he reported no history of hearing loss. The Veteran's December 1971 separation examination revealed audiometry results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 LEFT 15 25 20 25 Private treatment records include a May 2005 Individual Hearing Evaluation Letter which notes that the Veteran's hearing test indicated hearing loss. The letter showed audiometry results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 25 30 LEFT 35 40 50 60 60 In a May 2005 statement, the Veteran's spouse recalled that she noticed her husband's hearing loss soon after she met him, in 1975. She stated that his hearing loss has been getting worse with time. On February 2007 VA examination, it is noted that the Veteran served as a field artilleryman. He complained of left ear hearing difficulties and unilateral periodic tinnitus since 1971. His noise history included exposure to artillery fire and gunfire while in military service. His civilian employment was in construction and pipe fitting. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 25 30 30 LEFT 15 25 25 50 60 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 92 percent in the left ear. The examiner noted sensorineural hearing loss, mild in the right ear and moderate in the left ear, and found that the Veteran's level and type of hearing loss supported his claim of tinnitus. The examiner opined that it is not at least as likely as not that the Veteran's hearing loss and tinnitus had their origins during his military service. Based on review of the Veteran's claims file, the examiner explained that the Veteran's induction and separation examinations indicated hearing to be within normal limits for both ears and he reported no history of hearing loss on separation examination. In his May 2007 substantive appeal, the Veteran argued that his hearing loss and tinnitus are the result of cannon fire throughout his military career in combat. He stated that, after service, he worked in construction with no excessive exposure to high frequency noises because he had to wear protective gear. A September 2010 VA examination report notes the Veteran's history of exposure to gunfire and artillery while in service and heavy equipment while working in construction as a civilian. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 35 30 40 LEFT 25 25 35 50 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The diagnosis was bilateral high frequency hearing loss. It was noted that the Veteran denied tinnitus. The examiner opined that it is less likely as not (less than 50/50 probability) that the Veteran's hearing loss or tinnitus is cause by or a result of military service because review of the STRs showed that, while the Veteran experienced threshold shift during military service, he still exited military service with normal hearing in both ears. The examiner also noted the Veteran's history of civilian occupational noise exposure and his being out of the military for almost 40 years. On February 2013 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 40 50 55 LEFT 25 35 40 70 65 Speech audiometry revealed speech recognition ability of 60 percent in each ear. The diagnosis was bilateral sensorineural hearing loss. Based on review of the claims file, the examiner opined that it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss is cause by or a result of military service. The examiner explained that hearing changes from induction physical audiogram and separation physical audiogram are consistent with noise exposure and suggestive of significant threshold shift. It was further noted that the Veteran reported recurrent tinnitus and, based on a review of his claims file, his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is know to be a symptom associated with hearing loss. It is not in dispute that the Veteran now has a bilateral hearing loss disability by VA standards, as such is shown by official audiometry. As VA examination reports note his complaints of tinnitus, the existence of tinnitus is generally established by self-reports, and because the Board finds no reason to question the Veteran's reports of tinnitus, it may also be conceded that he has tinnitus. Based on the Veteran's MOS as reported on his DD Form 214 and his credible accounts of related noise exposure, it may further be conceded that he was exposed to some noise trauma in service. (He has denied any post-service occupational or recreational noise exposure, asserting that he had to wear protective gear while working construction). The remaining criterion for establishing service connection for the bilateral hearing loss disability and tinnitus is whether there is competent evidence that such disabilities are related to the recognized noise trauma in service. The February 2013 VA examiner's opinion which supports the claims reflects review of the entire record as evidenced by the discussion of the service induction and separation audiograms and is supported by an explanation of rationale. Given the examiner's familiarity with the relevant facts and medical evidence and explanation of the conclusion reached, the Board finds the 2013 audiologist's opinion to be the most probative and persuasive evidence regarding a nexus between the Veteran's bilateral hearing loss and tinnitus and his service. The February 2007 and September 2010 VA medical opinions against the Veteran's claims are inadequate for rating purposes because neither opinion includes a discussion of the the significance of the upward shift in tested frequencies noted between the Veteran's induction and separation examinations or identifies intercurrent causes to which the hearing loss is "more properly attributable." See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Accordingly, the evidence shows that the Veteran has tinnitus as well as a bilateral hearing loss disability by VA standards; that he was exposed to noise trauma in service; and that his current bilateral hearing loss disability and tinnitus are at least as likely as not related to the noise trauma in service. All of the requirements for establishing service connection are met. Resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss and tinnitus is warranted. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in March 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in implementing the Board's grants of service connection. ORDER Entitlement to service connection for bilateral hearing loss is warranted. Entitlement to service connection for tinnitus is warranted. The appeal is granted as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs