Citation Nr: 1324716	
Decision Date: 08/02/13    Archive Date: 08/13/13

DOCKET NO.  09-05 736	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel

INTRODUCTION

The Veteran served on active duty from October 1966 to October 1969.

This matter is on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.   

The Veteran testified before the undersigned Veterans Law Judge in September 2012.  A transcript of the hearing is of record.

This appeal was remanded by the Board in March 2013 for further development and is now ready for disposition.


FINDINGS OF FACT

1.  The competent and credible evidence establishes that the Veteran's current hearing loss is related to his in-service noise exposure.

2.  The Veteran's tinnitus is causally or etiologically related to his service-connected bilateral sensorineural hearing loss.  


CONCLUSIONS OF LAW

1.  Bilateral hearing loss was attributable to the Veteran's active duty service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was incurred as a result of a service-connected disability. 1101, 1110, 1112, 1113, 1154, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error is harmless and need not be further considered.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In some cases, the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptoms for certain specific chronic disorders. 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that service connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be "chronic" under 38 C.F.R. § 3.309(a).  As is relevant here, while sensorineural hearing loss is considered a chronic disease under 38 C.F.R. § 3.309(a), tinnitus is not.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Nevertheless, the presence of symptoms since service even for disorders not considered "chronic" may weigh in favor of service connection.  Additionally, as a chronic disease, service connection will also be presumed for sensorineural hearing loss if manifest to a compensable degree within one year after discharge from service.  38 C.F.R. §§ 3.307, 3.309 (2012).  

Impaired hearing is characterized as a disability for VA purposes when the hearing thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012).  Moreover, service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) to the standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). This is done by adding 15, 10, 10, 10 and 5 dB to the observed result for 500, 1000, 2000, 3000 and 4000 Hz. 

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012).  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.

Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

In this case, the Veteran served in the Army as a field artillery crewman from October 1966 to October 1969, which included service in the Republic of Vietnam.  It is his contention that his current bilateral sensorineural hearing loss is at least partially attributable to his active duty service.  At the hearing before the Board in September 2012, he explained that his Vietnam service involved firing anywhere from 50 to 75 volleys per day from a 105 mm howitzer for approximately the first six months of his tour.  He also stated that he informed his physicians during active duty that he was experiencing symptoms such as soreness and ringing in his ears.  

After a review of the evidence of record, the Board determines that service connection for bilateral hearing loss and tinnitus is warranted.  As an initial matter, the service treatment records reflect that the Veteran underwent a noticeable shift in tonal thresholds between the time he entered and left active duty.  Specifically, at his entry physical examination in October 1966, his tonal thresholds, in decibels (with the corrected values in parenthesis), were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0(15)
0(10)
0(10)
25(35)
25(30)
LEFT
0(15)
0(10)
0(10)
0(10)
25 (30)

At the time of his separation physical examination in August 1969, his tonal thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
NT
15
LEFT
15
15
15
NT
15

The Board recognizes that the tonal thresholds observed when the Veteran left active duty do not establish hearing loss for VA purposes under 38 C.F.R. § 3.385.  However, the evidence need not establish hearing loss for VA purposes while he was on active duty.  Rather, all that is required is that there is a measureable increase in severity.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  In this case, although the tonal thresholds do not show a worsening at all frequencies, there is sufficient evidence based on these values to conclude that his hearing acuity did diminish while in service.  

Next, the evidence also establishes that the Veteran currently has bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385.  Specifically, since the time he underwent a VA examination in April 2007, he has exhibited tonal thresholds of 70 dB or greater at 2000 through 4000 Hz.  Therefore, it is established that the Veteran currently has hearing loss for VA purposes.  

As a consequence, the salient question is whether or not his current hearing loss is at least partially attributable to his in-service noise exposure, which the Board concedes was likely substantial, given the nature of his service.  In this regard, the medical opinions provided on this question are inconsistent.  For example, the Veteran has undergone VA audiological examinations in April 2007 and May 2013.  In both cases, the examiners opined that it was less likely than not that the Veteran's hearing loss was related to active duty service.  In support these opinions, both examiners noted that the Veteran's hearing loss was normal at the time he left active duty, but did not address the apparent tonal threshold shift observed on his entry and separation physical examinations.  

In contrast to the VA opinions, the Veteran has submitted an opinion from a private audiologist in March 2008, who diagnosed severe hearing loss at the higher frequencies in both ears.  Based on the results of his examination, the private audiologist opined that the Veteran's hearing loss was "long standing" and was associated with the noise exposure he experienced in service.  However, this opinion was not supported by any reasons or bases. 

When presented with conflicting evidence, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). While the Board may appropriately favor the opinion of one competent medical authority over another, it may not reject medical opinions based on its own medical judgment. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Colvin v. Derwinski, 1 Vet. App 171 (1991). 

In this case, the Board determines that the weight of the opinions is substantially comparative, and that equipoise has been shown.  It is generally true that opinions provided by VA examiners' opinions carry great probative value, because they are made based on a review of the claims file, which the private audiologist did not review.  However, the VA examiners' opinions in this case were based exclusively on the fact that the Veteran had normal hearing when he left separation, and neither addressed the shift in tonal thresholds in service.  It is well established that this rationale is insufficient.  Thus, although the private audiologist did not review the claims file (which diminishes the probative value of the opinion), his opinion is not significantly contradicted by the VA examiners' similarly weak opinions.  

Also, neither of the VA examiners' opinions appears to have considered the value of the Veteran's statements regarding his hearing loss.  While he is not a medical professional, and thus cannot make his own medical conclusions, the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

Moreover, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
Here, there is no reason to doubt the credibility of the Veteran's assertions that he began to experience diminished hearing in the years following active duty service.  Even though it may have been clinically identified only relatively recently, this fact would not contradict his assertions that he has experienced some less substantial levels of hearing loss prior to that time. Moreover, insufficient consideration has also been given to the fact that the Veteran's military specialty, a field artillery crewman, was a specialty particularly prone to significant noise exposure.  When reviewing the evidence in its totality, the Board determines that it is at least as likely as not that his hearing loss is at least partially due to his service.  Thus, service connection for bilateral hearing loss is warranted on this basis. 

Having determined that service connection for bilateral hearing loss is warranted, the Board also finds that service connection is warranted for the Veteran's tinnitus.  Notably, when he underwent a VA audiological examination in May 2013, the examining audiologist opined that the Veteran's tinnitus was at least as likely as not related to his hearing loss, because "tinnitus is known to be a symptom associated with hearing loss."  See also The MERCK Manual, Sec. 7, Chapters 82, Approach to the Patient with Ear Problems, and Section 7, Ch. 85, Inner Ear.  Thus, the Board concludes that there is support for the conclusion that the Veteran's tinnitus is associated with his now service-connected bilateral hearing loss.  


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus, as secondary to the service-connected bilateral hearing loss, is granted.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs