Citation Nr: 1325563	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  11-12 047	)	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 tinnitus.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Joseph Aquilina, Associate Counsel




INTRODUCTION

The Veteran had active military service from August 1960 to July 1963 and from March 1964 to March 1967.

This matter is on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

A review of the Veteran's online Virtual VA file indicates no additional evidence that has not been considered for this decision.

FINDINGS OF FACT

1. The Veteran's current hearing loss is either related to his in-service noise exposure or had its initial onset during his active military service.

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


CONCLUSIONS OF LAW

1. The Veteran's bilateral hearing loss was incurred due to active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 

2. The Veteran's tinnitus was incurred due to active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).





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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). As the Veteran's claims are being granted herein, there would be no useful purpose in discussing whether VA satisfied the duties to notify and to assist the Veteran in his claims.

Analysis

Under the relevant laws and regulations, 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, the veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2011).

The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay 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 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system such as hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

For the purpose of applying the laws administered by VA, impaired hearing is considered 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  The Court in Hensley indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.

Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute  (ANSI).  The in-service hearing evaluations discussed below appear to have been conducted using the ASA standards.  Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards.  For ISO conversion, the Board will add (+15) (+10) (+10) (+10) (+5).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Regarding existence of current disability, review of the audiometric testing conducted at the time of the April 2010 VA audiological evaluation, reveals that the Veteran has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. With regard to tinnitus, he is competent in his report of having ringing in his ears.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus is a type of disorder associated with symptoms capable of lay observation).  Thus, there is sufficient evidence of current disabilities of bilateral hearing loss and tinnitus. 

As for the presence of a disease or injury in service, the Veteran's entrance examination for his first period of active service utilized the whispered voice test, which showed his hearing to be 15/15 bilaterally.  However, by the time he underwent his service discharge examination in June 1963, audiometric testing was utilized and showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
X
25
LEFT
20
15
20
X
15

Subsequent in-service audiometric testing showed slightly improved readings.  Nevertheless, while hearing loss for VA purposes was not shown in service, there is clearly some evidence that the Veteran left his initial period of active service with some degree of hearing loss.  See Hensley.  

There is also sufficient evidence that the Veteran experienced noise exposure in service.  His military occupational specialty was construction machine operator.  His assertion of being exposed to loud noise (acoustic trauma) is commensurate with his military service.  38 U.S.C.A. § 1154(a).  Put another way, there is evidence of the Veteran having noise exposure in service as well as having some degree of hearing loss at the time he exited service in 1963.  

With regard to a nexus of the Veteran's bilateral hearing and tinnitus to time in service, an April 2010 VA examination tends to weigh against the claim.  In that examination, the VA provider opined that hearing loss and tinnitus were less likely as not caused by or a result of in service acoustic trauma. Additionally the Veteran "could not recall an onset acoustic event giving rise to the tinnitus." The provider, who reviewed the Veteran's service files, noted that while the Veteran worked with machinery and heavy equipment, the Veteran's five audiometric tests in service registered normal hearing on each occasion including his January 1967 separation examination. While the Veteran's military occupation exposed the Veteran to loud noise, normal hearing at discharge was not consistent with an acoustic event or trauma, the provider stated.  The provider noted the Veteran reported constant tinnitus, and that his difficulty hearing impacted driving and hearing warning signals. The provider noted that the Veteran's cochlear impairment was consistent with many years of noise exposure including thirty years the Veteran worked for an auto manufacturer as well as recreational noise exposure from using power tools and target practice. 

In addition to the VA examination, the evidence includes a June 2010 private medical audiology evaluation which provided a contradictory medical opinion. While the private medical provider acknowledged that the Veteran had normal hearing during service, she observed a 20 decibel difference in the in service audiometric tests. The provider stated that given the differential of in-service exams and the normal hearing at discharge, these results were indicative of either a threshold shift or that there "was a problem with the equipment or test procedure." The provider also stated that the Veteran relayed having intermittent tinnitus in service that had since become constant. While the provider also noted cochlear damage, she stated that a shift in the cochlea occurs prior to an individual manifesting a threshold shift on an audiogram.  The private provider's testing results indicated a diagnosis for sensorineural hearing loss and a finding that it was "more likely than not that...hearing loss and tinnitus is related to his military noise exposure and may have worsened as a civilian."

The Board notes that there are medical opinions both favorable and unfavorable as to a link between the Veteran's bilateral hearing loss and tinnitus and active service.  Neither opinion is any more or less probative than the other.  Both examiners refer to pertinent findings in the service treatment records to buttress their opinions along with supporting rationale.  The competent medical evidence is thereby in relative equipoise as to whether his hearing loss and tinnitus are related to active service.  Indeed, the fact that the VA examiner failed to address the hearing loss demonstrated in 1963 gives the Board come cause for concern.  Accordingly, in resolving reasonable doubt in the Veteran's favor, the Board concludes that the competent medical evidence of record is in relative equipoise, and, therefore, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Turning to the claim for entitlement to service connection for tinnitus, the Board concludes that this disorder should also be granted. As previously noted, the Veteran is not generally competent to self-diagnose medical disorders unless he has specialized medical training or the diagnosis may be based on unique and readily identifiable features. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However the Board has conceded that the Veteran's military service subjected him to noise exposure; indeed the RO also conceded this point as it is reasonable that loud noise is associated with operating heavy equipment and machinery. The Board considers tinnitus to be a disorder that the Veteran may diagnose, as it is identified purely by its symptoms. Therefore, although the Veteran's service treatment records do not indicate complaints of tinnitus while on active duty, the Board may accept that he has tinnitus based on his own complaints where, as here, there is no reason to doubt the credibility of his statements. 

Additionally, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The Merck Manual, Sec. 7, Ch. 82, and Approach to the Patient with Ear Problems. Here, the Veteran's bilateral hearing loss is consistent with the noise exposure encountered while on active duty. Moreover, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Ch. 85, Inner Ear. Further support is found in the VA examination setting forth that tinnitus is due to or a result of acoustic trauma and hearing loss. 

Given the fact that the Veteran is now service-connected for bilateral hearing loss, in conjunction with the provisions from The Merck Manual and the Veteran's lay statements, the Board concludes that there is support for the conclusion that his tinnitus is attributable to his period of active service or his now service connected hearing loss.  Service connection is warranted for both his hearing loss and tinnitus. 



ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted. 





____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs