Citation Nr: 1326318 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-30 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1943 to February 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied a compensable rating for service-connected sinusitis, and denied service connection claims for hearing loss and tinnitus. In November 2011, the Veteran submitted a Notice of Disagreement (NOD) appealing the service connection claims only. The RO issued a Statement of the Case (SOC) in September 2012. In October 2012, the Veteran timely filed a substantive appeal, via a VA Form 9 (Appeal to Board of Veterans' Appeals) which limited the issue being appealed to "[h]earing." In January 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims folder. At the January 2013 hearing, the Veteran's testified that his tinnitus was interfering with his ability to hear. After further questioning, the undersigned determined that the Veteran's appeal for "hearing" encompassed his tinnitus disability, and that he misunderstood the distinction that two separate disabilities were involved. In general, the Board recognizes that lay claimants are not tasked with the responsibility of being conversant with technical medical terms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability.") The time limit to file a substantive appeal is not jurisdictional in nature and may be waived by VA. Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). Given the circumstances in this case, and recognizing that the VA adjudicative system is a pro-claimant paternalistic system, the Board waives any substantive appeal deficiencies with respect to the service connection claim for tinnitus and assumes jurisdiction over the issue. In March 2013, the Board sought expert medical opinion in this case from an otologist with the Veterans Health Administration (VHA). A VHA opinion was received by the Board in July 2013 which is fully favorable to the Veteran. As the benefits sought on appeal can be granted in full, the Board finds that it is in the best interests of the Veteran to immediately adjudicate this case rather than delay adjudication in an effort to provide the Veteran a copy of the VHA opinion with an opportunity to provide additional evidence and/or argument. FINDINGS OF FACT 1. The Veteran's bilateral sensorineural hearing loss stems from his military noise exposure. 2. The Veteran's tinnitus stems from his military noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for bilateral sensorineural hearing loss and tinnitus. Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110, 1131. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may only be granted if claimed hearing loss is of sufficient severity to be considered a disability for VA purposes. Specifically, impaired hearing will be considered to be 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 frequencies 500, 1000, 2000, 3000, or 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. The facts of this case may be briefly summarized. The Veteran served on active duty from January 1943 to February 1946 in the U.S. Navy. He had a military occupational specialty as a Radioman on landing crafts, and participated in the Normandy Invasion. He reports noise exposure to weapons shooting during combat, including 5-inch guns. The Veteran's report of unprotected noise exposure during active service is deemed credible by the Board. The Veteran's January 1943 induction examination and February 1946 separation examination only measured hearing acuity by whispered voice test, which was 15/15 bilaterally on both examinations. He was treated for vertigo symptoms in January 1946. Postservice, the Veteran first reported an occupation as a meter man in July 1946. He later had a 22-year career as an electrical engineer in which, approximately twice per year, he oversaw the installation and testing of plant equipment. He generally has testified that this occupation did not involve significant noise exposure. He also reports seeking treatment for hearing loss and tinnitus symptoms contemporaneous in time to his discharge from active service, but those records are not available. He asserts that his tinnitus symptoms may have been mistakenly been attributed to his service-connected sinusitis disability. In January 2011, a private audiologist statement provided a diagnosis of bilateral and symmetric moderate-to-severe sensorineural hearing loss with very poor word recognition bilaterally. This examiner opined as follows: It is apparent that this individual's current hearing loss and tinnitus are likely as not a result of exposure to a high noise environment while on active duty in the United States Navy. An August 2011 VA audiology opinion states as follows: The C-file contained a 1943 physical examination with 15/15 whispered hearing results that did not completely rule out a slight high frequency hearing loss. However, the next available test results were 64 years after military service and the [V]eteran has a history of civilian noise exposure and probably presbycusis effects in later years. Changes in hearing from 2007-2011 also showed slight changes in hearing and degraded speech recognition scores consistent with presbycusis effects in later years. In my opinion the current hearing loss is less likely as not caused by military noise exposure. Although early changes in hearing in 1946 cannot be completely rule out, the current hearing loss is consistent with the [V]eteran['s] history of civilian noise exposure and presbycusis effects in later years. In March 2013, the Board sought expert opinion from a VHA otologist as the opinions of record were deemed inadequate. In this respect, the January 2011 private medical opinion did not provide any rationale to support the opinion offered. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion). The August 2011 VA examiner opinion appeared to presume a much greater level of civilian noise exposure than reported by the Veteran. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (physician's opinion based upon an inaccurate factual premise has reduced probative value). In July 2013, the Board received a VHA opinion co-signed by the Chief of Otolaryngology as well as the Chief of Audiology and Speech Pathology Service of the VA Tennessee Valley Health Care System. These examiners were impressed with the fact that the Veteran's participation in the Normandy invasion, as well as at other times during his military service, exposed him to extraordinary, hazardous levels of noise capable of producing bilateral sensorineural hearing loss and tinnitus. It was noted that the Whispered Voice Test administered in service had no scientific validity and was a factor to be ignored in the case. The examiners also noted the description of the Veteran and his spouse regarding a change in hearing acuity shortly after service. Given these factors, the examiners opined that the Veteran's history was consistent with military noise-induced hearing loss. It was further noted that the Veteran's civilian noise exposure would not even remotely rival the severity of noise exposure in service. In summary, the examiners concluded as follows: Consequently, it is our opinion that, due to the Veteran's military MOS and circumstances of his military service, due to the Veteran's complaints of onset of symptoms at the time of discharge from active military duty, due to the Veteran's report of seeking medical care within a year following discharge from active military duty, and because the service military record is essentially silent regarding hearing loss and tinnitus, it is at least as likely as not that the Veteran's hearing loss and tinnitus are the result of his military duty. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, there is no dispute that the Veteran meets the VA definition of a current hearing loss disability under 38 C.F.R. § 3.385. The Board has no doubt that the Veteran experienced hazardous noise exposure during service, including his participation in the landing of Normandy. The extent of any postservice occupational noise exposure is not exactly known, but the VHA experts agree that such noise exposure did not rival the level of hazardous noise exposure in service. The Board also has no reason to doubt the credibility of the assertions of the Veteran concerning the onset of decreased hearing acuity and seeking medical treatment shortly after service discharge. Based on this accepted factual history, the Board places overwhelming probative value on the opinions of the VHA experts who concluded that it is at least as likely as not that the Veteran's hearing loss and tinnitus are the result of his military duty. The claims of service connection for bilateral sensorineural hearing loss and tinnitus, therefore, are granted. 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Board has granted the benefits being sought on appeal in full. 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 need not be discussed. Similarly, any potential deficiency in the conduct of the Board's hearing has been rendered harmless with a grant of full benefits being sought in this case. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (holding that 38 C.F.R. § 3.103(c)(2) imposes on a VA hearing officer (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs