Citation Nr: 1326606 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-18 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for bilateral hearing loss and tinnitus. In February 2012, subsequent to issuance of the most recent Supplemental Statement of the Case (SSOC) in May 2011, the Veteran's representative submitted additional argument and medical evidence in support of the claims on appeal. This evidence was accompanied by a waiver of RO consideration of the evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is attributable to the acoustic trauma he experienced during active service. 2. The Veteran's tinnitus is attributable to the acoustic trauma he experienced during active service. CONCLUSIONS OF LAW 1. Bilateral ear hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the evidence must generally 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, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Organic neurological disorders, including sensorineural hearing loss, are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any hearing loss disability can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, such may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is not such a disability. According to VA standards, impaired hearing will be 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 these frequencies 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 United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 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. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is 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, supra. In a September 2010 statement, the Veteran reported that he served in the artillery in the Republic of Vietnam, working with self-propelled howitzers and artillery shells. He described that his duties on the back of truck, breaking open six-pack pallets of artillery shells and dropping them at each of the guns of the battery, left him exposed to sniper fire. He reported that no hearing protection was available and his artillery shell deliveries were often made during episodes of gunfire. He reported that on many occasions, the blast from gunfire was severe enough to deafen him for several hours, and that the ringing from such had never ceased. The Veteran's service personnel records, specifically, his service separation form, his DD-214, indicates that he was indeed in the Republic of Vietnam from May 14, 1969, to June 18, 1970. The Board concedes that the Veteran experienced acoustic trauma in service as a result of his military duties. He has offered competent testimony as to his in-service experiences with noise exposure, and symptoms of tinnitus and gradually decreasing hearing acuity; there is no indication that the Veteran is not credible. See Layno. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of hearing loss or tinnitus. Upon entrance into service, in September 1968, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 0, 0, 0, 0, 0, 15, and for the left ear were 5, 0, 0, 0, 0, 5, both measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Upon separation from service, in June 1970, objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 10, 15, 10, 10, 10, 10, and for the left ear were 15, 10, 10, 10, 5, 10, both measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Private treatment records dated in June 1986 indicate that the Veteran reported a history of loud noise exposure from 1969 to 1970, in artillery, and reported a history of eardrum rupture as well as current hearing problems. In July 1994, he again reported his history of loud noise exposure, and reported a history of a ruptured eardrum, tinnitus, and current hearing problems. The Board notes here that there is no evidence that the Veteran asserts that he ruptured his eardrum during service, and no subsequent VA or private examination includes a notation of such as an in-service complaint or finding. VA treatment records dated in January 2008 indicate that the Veteran presented for audiological treatment, and reported a history of noise exposure in artillery, with a history of intermittent tinnitus since he was in his 20's, and increased difficulty understanding people in a noisy environment. On VA examination in December 2009, the Veteran reported gradually decreased bilateral hearing acuity since 1970, and a history of combat noise exposure from 1969-1970. He denied post-service occupational noise exposure, and reported that he cut his lawn over the past 20 years, with hearing protection, and attended two concerts in the 1980's. He reported that his tinnitus began in 1969. Objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 5, 10, 5, 25, 30, and for the left ear were 0, 10, 5, 20, 35, both measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition ability was 98 percent in the right ear and 100 percent in the left ear. Based upon these results, there is no evidence of an auditory threshold of 40 decibels or greater, auditory thresholds for at least three of the frequencies of 26 decibels or greater, or speech recognition scores less than 94 percent, and the Veteran's bilateral hearing loss thus did not meet the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The VA examiner, in December 2009, opined that the Veteran's tinnitus was at least as likely as not associated with current hearing loss as the result of a combination of previous military noise exposure and lawn cutting noise of 20 years. The examiner also opined that the Veteran's bilateral hearing loss was at least as likely as not due to civilian noises, lawn cutting, and the normal aging process, and less likely as not due to military noise exposure. She noted that the Veteran's hearing loss was first noted in 2008, and that he entered and separated from service with normal hearing. Private audiological records dated in June 2011 indicate that objective findings revealed that the Veteran's puretone thresholds, in decibels, for the right ear were 15, 15, 20, 35, 40, and for the left ear were 10, 10, 10, 30, 50, both measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Based upon these results, there is evidence of an auditory threshold of 40 decibels or greater, and the Veteran's bilateral hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. In a June 2011 letter, the private physician opined that the Veteran had high-frequency sensorineural hearing loss and tinnitus, likely secondary to military noise exposure. No rationale is provided. In a July 2011 letter, the private physician noted that the Veteran reported a history of military noise exposure, and reported that his tinnitus was present since that time. The private physician opined that, as such, it is more likely than not that the Veteran's tinnitus is due in large part to his military noise exposure. He reasoned that artillery noise and its effect have been clearly documented to be a cause of tinnitus. The December 2009 VA examination, and resultant nexus opinion regarding bilateral hearing loss, is not probative evidence in the current appeal. The VA examiner did render a positive etiological opinion, supported by rationale, as to the Veteran's tinnitus. While the VA examiner included bilateral hearing loss in her positive etiological opinion as to the Veteran's tinnitus, she clearly provided a negative etiological opinion, with rationale, as to the Veteran's bilateral hearing loss. It is significant; however, that she did not consider the downward shift in hearing acuity measured at the time of the Veteran's separation from service when compared to his hearing acuity measured upon entrance into service. Hensley, 5 Vet. App. 155, at 157. Further, it is of note that while she recorded the Veteran's statement that he used hearing protection during his post-service history of cutting the lawn, she reasoned, in her negative opinion, that the Veteran's current bilateral hearing loss was more likely related to aging and cutting the lawn than military noise exposure. Also, she incorrectly noted that the first complaint of hearing loss was not made until 2008, when the claims file contains private records dated in as early as 1986 demonstrating that the Veteran reported problems with hearing. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). It also appears that the examiner did not consider the Veteran's probative lay statements as to the onset of bilateral hearing loss. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). (Continued on the next page) Based on the forgoing, there is probative evidence of current bilateral hearing loss and tinnitus, as well as in-service acoustic trauma. There is probative evidence, in the form of the positive VA and private etiological opinions as to the Veteran's tinnitus and in-service acoustic trauma. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). There is also probative evidence, in the form of a competent and credible account of gradually decreasing bilateral hearing acuity since service, or continuous hearing loss. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss and tinnitus is warranted. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs