Citation Nr: 1325996 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 03-08 616A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This case was previously remanded by the Board in March 2006, May 2010 and September 2012 for further evidentiary development. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records not included in the Veteran's physical file. These have been reviewed and considered as part of the proceeding decision. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is a result of noise exposure during active service. 2. The Veteran's tinnitus is a result of noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and 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 was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Analysis The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus. When resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. As such, the claims will be granted. According to the Veteran's October 1967 enlistment examination, pure tone thresholds, in decibels (dB), were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 0 (10) 5 (15) 0 (5) LEFT 5 (20) 0 (10) 35 (45) 20 (30) 25 (30) 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 Veteran's October 1967 enlistment examination confirms that the ASA standards were used when testing the Veteran. Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO - ANSI in the preceding chart (reflected by the numbers in parentheses). For ISO conversion, the Board added 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz and 5 at 4000 Hz. Therefore, it would seem that the Veteran was suffering from impaired hearing in the left ear at the time of enlistment. For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2012). The Veteran also reported a history of hearing loss in his report of medical history associated with this examination. The Veteran's May 1969 separation examination reflects pure tone thresholds, in dB, to have been: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 0 LEFT 5 0 35 N/A 20 The Veteran again reported a history of hearing loss in his report of medical history associated with this examination. The record does not reflect that the Veteran sought treatment for hearing loss for many years following his separation from active duty. According to a March 1999 VA psychiatric examination, the Veteran had a history of working with machinery both before and after military service. A March 1999 general examination report reflects diminished hearing, bilaterally, with the left ear being slightly worse than the right. A February 2001 VA treatment record notes that the Veteran reported the existence of tinnitus for the past one year. However, a June 2001 record notes that the Veteran began to notice distortion of hearing and tinnitus after exposure to heavy noises from gun fire in Vietnam. A hearing test was performed in October 2001, revealing an asymmetrical bilateral mild to moderate sensorineural hearing loss with the left ear being slightly worse than the right. A September 2002 private audiometric report confirms that the Veteran was suffering from hearing loss and tinnitus in both ears. In September 2009, the Veteran was afforded a VA audiometric examination. It was noted that he served in Vietnam without hearing protection. He also worked in a machine shop both before and after service. The Veteran reported a history of tinnitus that was noticeable even in Vietnam. Pure tone thresholds, in dB, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 55 60 70 LEFT 20 55 65 70 70 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear. The examiner diagnosed the Veteran bilateral hearing loss and tinnitus. The examiner opined that it was not at least as likely as not that the Veteran's hearing loss manifested during service, noting that there were no threshold decreases noted upon separation. The examiner also opined that it was less likely than not that tinnitus manifested during service, since the Veteran's claim for tinnitus began in 2002. The Veteran was afforded a VA audiometric examination in February 2013. Pure tone thresholds, in dB, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 60 65 70 LEFT 25 60 65 70 70 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear. The examiner concluded that it was at least as likely as not that the Veteran's current hearing loss was caused by military service. The examiner explained that while there was evidence of hearing loss prior to military service, auditory testing at 3000 Hz was not performed upon separation. As such, a further decrease in hearing could not be ruled out. The Veteran served in the artillery which concedes a high probability of hazardous noise exposure. The examiner further opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be associated with hearing loss. The above evidence demonstrates that service connection for bilateral hearing loss and tinnitus is warranted. The Veteran has reported in-service noise exposure and his DD-214 confirms service in the artillery. Furthermore, the February 2013 VA examiner concluded that it was at least as likely as not that hearing loss and tinnitus were due to military service based on the Veteran's history and in-service noise exposure. As such, when resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for hearing loss and tinnitus is warranted. The Board recognizes that the September 2009 examiner opined that it was less likely than not that hearing loss and tinnitus manifested during service. However, the examiner based this opinion on the fact that there was no auditory threshold shift at the time of separation and because the Veteran did not report tinnitus until 2002. As explained by the February 2013 examiner, pure tone thresholds were not measured upon separation at 3000 Hz, and as such, it would require speculation to assume there was no shift. Furthermore, the mere passage of time between military service and the Veteran's report of tinnitus in 2001 (not 2002 as reported by the examiner) does not in and of itself demonstrate that this condition is not related to military service. Therefore, the Board has assigned more probative value to the February 2013 examination. The record also confirms that there was in-service noise exposure and there is nothing to call into question the credibility of the Veteran's reported history. Therefore, when resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. See 38 U.S.C. § 5107(b). The claims are granted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs