Citation Nr: 1324620 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-01 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The competent and credible evidence of record establishes that the Veteran's current bilateral hearing loss is related to his military noise exposure. 2. The competent and credible evidence of record establishes that the Veteran's current tinnitus is related to his military noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In the present case, the grants of service connection for bilateral hearing loss and bilateral tinnitus constitute complete grants of the benefits sought on appeal. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claims is harmless error, and no further discussion of VA's duty to notify and assist is necessary. The Veteran contends that exposure to loud noise as an ammunition storage specialist during active service caused his current bilateral hearing loss and bilateral tinnitus disabilities. Specifically, he states he was exposed to loud noise in the course of continuously firing and detonating arms and explosives. For this reason, he asserts that he is entitled to service connection for bilateral hearing loss and bilateral tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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) (2012). In Hensley, the Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board recognizes that lay evidence concerning onset and a history of symptoms during or after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's service treatment records do not document diagnoses or treatment of bilateral hearing loss or tinnitus. An audiogram conducted upon the Veteran's entry into service in April 1968 shows no puretone threshold results greater than 20 decibels at any relevant frequency. In an accompanying report of medical history, the Veteran marked "no" to the question of whether he had now or ever previously had hearing loss. His treatment records additionally document that in July 1969, the Veteran was treated for soreness in his right ear and was diagnosed with "otitis externa" of the right ear. At his April 1970 separation examination, the Veteran scored a 15/15 on the whisper test, but was not given an audiogram. On the report of medical history accompanying the separation examination, the Veteran marked "yes" to the question of whether he had now or ever previously had hearing loss. Subsequent to his discharge from service, the Veteran has been diagnosed with chronic right otitis media, chronic mastoiditis, cholesteatoma, and conductive hearing loss in both ears. He underwent surgery on his right ear in 1980, 2007, and 2008. As the Veteran has current diagnoses of bilateral hearing loss and tinnitus, an in-service injury in the form of acoustic trauma, and the preponderance of the evidence establishes that the Veteran's current disabilities are causally related to the acoustic trauma sustained in service, the Veteran is entitled to service connection for bilateral hearing loss and tinnitus on a direct basis. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability that comports with VA's definition of disability resulting from hearing impairment. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On VA examination in December 2010, a VA audiologist diagnosed the Veteran with hearing loss in both ears as defined by VA regulations. With respect to the Veteran's tinnitus disability, the Veteran's competent lay statements are sufficient to establish that he currently has tinnitus. "Lay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet. App. 303, 307 (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). In the instant case, the Veteran's report of ringing in the ears is competent evidence. In addition, the December 2010 VA examination report referring to the Veteran's symptoms and tinnitus is evidence that the Veteran does have tinnitus. Next, the evidence of record supports a finding that the Veteran sustained an in-service injury in the form of significant noise exposure. Specifically, the Veteran's Form DD-214 lists his military occupational specialty as an ammunitions storage specialist, and further notes service in Vietnam from April 1969 to April 1970. In April 2009 and December 2010 VA examinations, a February 2010 private medical examination, and a January 2011 statement, the Veteran consistently stated that while in Vietnam, his duties routinely required him to dispose of ammunition through live fire and explosive detonation for hours at a time and without the use of any hearing protection. As the Veteran's service personnel records are supportive of his credible and competent contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met. See 38 C.F.R. § 1154(a) (2012). Having determined that the Veteran sustained an injury in service, the final question before the Board is whether the Veteran's current bilateral hearing loss and tinnitus disabilities are related to the acoustic trauma sustained in service. In the present case, there is conflicting evidence on the issue of nexus that must be weighed. Against the Veteran's claim are two VA examination reports, conducted in April 2009 and December 2010, which state that his current bilateral hearing loss and tinnitus disabilities are not related to his service. Specifically, the April 2009 opinion states "[t]here were no complaints of tinnitus or hearing problems or treatment for tinnitus or hearing problems while in the military. The Veteran stated today that his ear problems began after the military. It is my opinion that his current hearing loss and tinnitus are not likely related to his military service." Similarly, the December 2010 VA opinion states: "Looking at the veteran's examination in 2009 his loss in the left ear was so mild that it did not qualify for disability under VA regulations and this is almost 40 years post separation. His tinnitus is worse in the right ear more likely due to the middle ear pathology as well. . . . There are no complaints of tinnitus in his military records; only one complaint of ear soreness due to otitis externa which would not be military related. Therefore, it is my opinion that the veteran's hearing loss and tinnitus are not as least as likely as not related to his military service but instead to middle ear pathology and just a natural mild progression of loss due to age and his occupational noise exposure." This evidence is contradicted by a February 2010 letter from a private audiologist. In the letter, the audiologist provides a detailed description of the Veteran's service treatment records, private medical treatment, history of noise exposure, and the April 2009 VA examination, and includes the following opinion: "[I]t is my professional opinion based on the history provided and results of this exam that Mr. [redacted]'s bilateral tinnitus and hearing loss is more likely than not . . . related to his military noise exposure and it may have worsened as a civilian. . . . According to the American College of Occupation and Environmental Medicine noise exposure without hearing protection can cause and/or contribute to noise-induced hearing loss, acoustic trauma, and tinnitus in individuals. Acoustic trauma may also lead to bone disarticulation which may have led Mr. [redacted] to seek surgery following his service duties." The Board finds the February 2010 private audiologist's opinion more probative than the opinions expressed in the April 2009 and December 2010 VA examinations. "[M]ost of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the private audiologist's opinion contains a complete and detailed review of the Veteran's history, and contains an analysis that is supported by the record and articulates the rationale for concluding that the Veteran's hearing loss and tinnitus are related to service. Therefore, it is of great probative value. In contrast, the April 2009 and December 2010 VA examinations are less probative as both opinions rely on an incomplete review of the Veteran's service treatment records and factually inaccurate findings that the Veteran did not complain of hearing loss in service. Specifically, both opinions state that the Veteran did not report any hearing loss during service; however, his service treatment records reflect that on his April 1970 report of medical history completed upon separation, the Veteran responded "yes" to the question of whether he currently or previously had hearing loss. In addition, the April 2009 VA medical examination failed to recognize or consider the fact that the Veteran complained of soreness in his right ear and subsequently received treatment for otitis externa in service. Accordingly, as the rationales provided in the April 2009 and December 2010 VA examination opinions rely on inaccurate reviews of the Veteran's service treatment records and additionally fail to consider relevant medical evidence of record, the Board finds they are of little probative value. See Nieves-Rodriguez, 22 Vet. App. at 304 ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). The Veteran's claims are also supported by his competent and credible lay statements that he first experienced symptoms of hearing loss and tinnitus during service. In his February 2009 claims for service connection, the Veteran noted that both hearing loss and tinnitus began "in service". In a statement accompanying his January 2011 Form 9, the Veteran additionally detailed that during service he was involved in training others to fire the M-60 machine gun for several weeks, which resulted in a deafening noise and in him experiencing a feeling in his head as if he were in a tunnel at the end of each day. He further recalled that while in Vietnam, he spent a week or more disposing of munitions, which required him to fire grenades and guns and resulted in loud and deafening noise. The Veteran also expressly stated that "[a]fter leaving the service [he] always favored [his] left ear noticing that hearing from [his] right ear was very difficult understanding what people, family were saying to [him]." He additionally recognized that upon separation, though "[e]veryday activity was at a normal noise level . . . [he] had problems hearing what friends and family were saying." As noted above, the Veteran reported that he had experienced hearing loss on his April 1970 report of medical examination for separation, contemporaneous to his in-service injury. The Veteran is certainly competent to report that he experienced these symptoms as it is within the realm of knowledge of a lay person. See Jandreau, 492 F.3d at 1376-77. With respect to the Veteran's statements regarding his tinnitus, though the April 2009 VA examiner documented that the Veteran told him he first noticed ringing in his ears "a year or two after the military," the Veteran subsequently explained that when first questioned about the onset of his tinnitus symptoms at the examination, he had difficulty recalling specific times and feelings of when he first noticed such problems. As noted above, the Veteran originally asserted he experienced tinnitus "in service" on his February 2009 claim. In his January 2011 statement, he additionally stated that he "experienced ringing in [his] ears," while exploding ordinances in Vietnam. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's direct statements to the VA regarding his tinnitus, rather than the examiner's reporting of the Veteran's statements, to be more reliable. Accordingly, the Board accepts the Veteran's competent statements regarding in-service noise exposure and subsequent unrelenting and continuous symptoms of hearing loss and tinnitus as credible. As the February 2010 private audiology opinion on the question of nexus carries the most probative weight of all the opinions for consideration and is consistent with the Veteran's credible and competent lay statements regarding his military service and the symptoms and onset of his hearing loss and tinnitus disabilities, the preponderance of the evidence weighs in favor of finding that the Veteran's current hearing loss and tinnitus disabilities are related to the acoustic trauma sustained in service. As such, service connection is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs