Citation Nr: 1326677 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-17 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to August 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran's current bilateral sensorineural hearing loss is related to his military service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's current tinnitus is related to his military service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Resolving doubt in favor of the Veteran, tinnitus was incurred in active duty military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be awarded for certain chronic diseases based on a continuity of symptomatology since service. 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) 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). Organic diseases of the nervous system such as tinnitus is arguably a chronic disease under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012). For the purposes of applying the laws administered by VA, 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 (2012). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis The Veteran contends that his current bilateral hearing loss and right ear tinnitus are attributable to his noise exposure during service. He asserts that his MOS (Military Occupational Specialty) of Material Facilities Specialist exposed him to significant noise. He recalled working right next to the flight line that serviced jets while stationed at Cannon AFB. Upon enlistment audiological examination in January 1975, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 X 0 LEFT 25 10 5 X 0 The Veteran was not treated for hearing related complaints during service, but in February and July 1978 clinical record cover sheets, the Veteran was noted to have an H1 profile. There is no discharge physical examination report. The evidence of record shows that the Veteran had increasing hearing problems in the 2000s. He maintains he has experienced hearing problems since service and progressively worsened in the mid- to late-2000s. The Veteran's treating ENT physician indicated that the Veteran's hearing problems could be related to or aggravated by his thyroid disorder. In a May 2011 letter from the Veteran's treating physician, he indicated that the Veteran's bilateral hearing loss preceded his thyroid disorder by many years. He noted that the Veteran has experienced bilateral hearing loss since his service in the Air Force by being in such close proximity to jet engines/ground operations. The Veteran was afforded a VA audiological examination in July 2011, during which puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 90 95 100 105 105 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 70 percent in the left ear. During his examination, the Veteran reported significant in-service noise exposure to jet engine noise, but no occupational or recreational post-service noise exposure. He complained of tinnitus occurring 95 percent of the time since service. The examiner diagnosed the Veteran as having bilateral profound sensorineural hearing loss with right tinnitus. The audiologist opined that the Veteran's tinnitus was at least as likely as not related to his bilateral hearing loss, but his bilateral hearing loss and right tinnitus were less likely than not related to service. In reaching this conclusion, the examiner noted that private treating physicians have questioned the onset of the Veteran's bilateral hearing loss and its potential relationship to another syndrome. In a July 2012 addendum, the July 2011 examiner indicated that she was finally able to review the claims file and her opinion with respect to the Veteran's claimed bilateral hearing loss and tinnitus remained the same. She also indicated that the H1 profile listed is not indicative of any significant hearing loss. In October 2012, the Veteran's treating physician provided an additional opinion related to the Veteran's bilateral hearing loss. He noted that he has been seeing the Veteran for over 20 years, and his bilateral hearing loss has progressed-especially in the right ear. He noted that the Veteran's hearing loss is principally sensorineural hearing loss, but there is also a conductive hearing loss component to it. The physician noted that the Veteran's hearing loss had its onset during his military service when he was exposed to jet engine noises, and it continued to progress during his post-service employment as a corrections officer. The physician noted that some otolaryngologists have suggested that the Veteran has an autoimmune disability that has contributed to his bilateral hearing loss. The physician noted, however, that the Veteran has not been identified as having an autoimmune disorder. In sum, the physician opined that the Veteran's bilateral hearing loss is related to his history of noise exposure. As an initial matter, the July 2011 audiological findings support the conclusion that the Veteran has a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385 (2012). Therefore, the question to be decided in the present appeal is whether such hearing loss and tinnitus are associated with the Veteran's active duty. With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma, specifically while serving on/near the flight line at Cannon AFB. Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to some acoustic trauma during service. Thus, the Board does not dispute that he likely experienced acoustic trauma during service. With respect to whether there is a nexus or relationship between the Veteran's current bilateral hearing loss disability and tinnitus and his military service, the Board acknowledges that the July 2011 VA examiner stated that the Veteran's hearing loss was unrelated to his acoustic trauma during service. She also noted that the Veteran's tinnitus was at least as likely as not related to his bilateral hearing loss. In addition, there are two positive nexus opinions, dated in May 2011 and October 2012 linking the Veteran's current bilateral hearing loss to his noise exposure during military service. Both the positive and negative opinions include a detailed rationale for their conclusions and are supported by the evidence of record. The Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing and symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his bilateral ears and right tinnitus, and the Board finds that his assertions are credible. He is also competent to report that he has experienced hearing problems and right tinnitus since service separation. The Board has no reason to doubt the Veteran's assertions that he incurred acoustic trauma during service. After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma, and his tinnitus is secondary to his bilateral hearing loss disability. Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss disability and tinnitus is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs