Citation Nr: 1327268 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-04 509 ) 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 Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1968 to July 1970, during which time he served one tour of duty in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2006 by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2009, September 2010, and March 2012, the Board remanded the appeal of the above issues to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary and procedural development. The claims were also referred by the Board in May 2013 so as to obtain an opinion from a specialist with the Veterans Health Administration (VHA). That opinion has been associated with the claims file, and the claims are properly before the Board for adjudication. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had its onset in service or is otherwise shown to be etiologically-related his period of active service. 2. The Veteran's tinnitus had its onset in service or is otherwise shown to be etiologically-related his period of active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Tinnitus was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the VCAA require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claims for service connection for bilateral hearing loss and tinnitus are granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Service Connection The Veteran claims that his current bilateral hearing loss and tinnitus are etiologically-related to his period of active service. He contends that these disorders are the result of his exposure to acoustic trauma from using radio headsets in the pursuit of his designated military duties as a radio attendant, as well as the sounds of artillery and small arms fire during Vietnam service while stationed in a combat zone. The Veteran's exposure to in-service acoustic trauma was conceded by the Board in March 2012, as his duties as a radio attendant and his service in a combat zone are established by his Army personnel records. Further, the November 2010 VA audiological examination report demonstrates puretone thresholds, bilaterally, that meet the criteria for hearing loss for VA compensation purposes. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012). To prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). 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). The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 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. 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. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). During his period of active service, the Veteran's service treatment records are silent as to complaints or diagnoses of hearing loss or tinnitus. At the time of his service enlistment examination in August 1968, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 N/A 5 LEFT -5 5 10 N/A 0 At the time of his separation examination in July 1970, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 25 25 25 LEFT 30 25 25 25 15 Post-service, the Veteran was afforded a VA examination in February 2006. The Veteran reported that he noticed hearing problems since his time in the military, as well as noise exposure from 1968-1970. In September 2010, the Board noted the Veteran's contention that his hearing loss was directly precipitated by his exposure to acoustic trauma from gunfire and radio noise in service. The Board remanded the claim for a VA examination, instructing the reviewing audiologist to provide a nexus opinion as to whether it was at least as likely as not that hearing loss and tinnitus were etiologically-related to this reported history. However, a March 2012 review of the nexus opinion obtained in November 2010 found that the examiner failed to provide a nexus opinion that complied with the Board's remand instructions. Instead, the examiner's opinion merely stated that there was less likelihood that the Veteran's bilateral hearing loss and tinnitus were related to his military service, based solely on the rationale that clinically normal findings were obtained on audiological examination on enlistment and separation from service, with no complaints of hearing loss or tinnitus symptoms shown during service. As such, the Board determined that the opinion was incomplete, and remanded the issues once again for an additional opinion with a complete rationale. Following the March 2012 Board remand, an additional VA opinion was obtained in March 2012 from a different examiner. Again, the opinion was negative, and once again, the crux of the rationale focused on the fact that the Veteran's hearing was within normal limits on separation in July 1970. It was also noted, as before, that service treatment records were silent for complaints of hearing loss and/or tinnitus. Also in support, it was noted that the Veteran filed claims for other disorders in 2001, but did not file a claim for hearing loss and/or tinnitus, and thus it stood to reason that he did not suffer from these disorders at that time. Although the second Board remand again asked the examiner to comment on the Veteran's conceded in-service noise exposure, as well as his competent statements in support of his claims, this was not accomplished. Instead, the examiner relied upon mere conjecture, as opposed to factors such as age or post-service noise exposure. Further, an analysis of the Veteran's audiogram was not completed, and therefore the rationale lacked a complete medical analysis so as to determine whether current hearing loss was the result of acoustic trauma. The Board then referred the Veteran's claims to a VHA specialist, who authored an opinion in May 2013. Following an exhaustive review of the Veteran's voluminous medical record, the specialist noted the Veteran's subjective reports of hearing loss and tinnitus, with an onset during, or soon after, his period of active duty. It was also noted that noise exposure had been conceded by VA, as the Veteran was in a combat area. While hearing was within normal limits on entrance, the specialist noted that clinically-significant threshold shifts were found at all pertinent frequencies on separation, each for the worse. She determined that these findings suggested an in-service injury which adversely affected the Veteran's auditory system. She added that there was no scientific basis to support the theory that hearing loss which develops many years after exposure is causally-related to that exposure. Therefore, had hearing levels remained stable during service, it would have been reasonable to state that there was no nexus between his current complaints and his period of active service. In this case, however, a clinically-significant shift did take place, bilaterally, ranging from 25-40 dB. She noted that the Veteran's current puretone thresholds meet the VA criteria for a hearing loss disability, bilaterally, and that his diagnoses of hearing loss and tinnitus are at least as likely as not related to his period of service. In support of her opinion, she noted that a current disability exists, that in-service acoustic trauma was conceded, the Veteran's lay statements indicating that hearing loss and tinnitus had been present since service, and documented evidence of an in-service injury to the auditory system (a clinically-significant shift in hearing thresholds). With regard to tinnitus, she indicated that tinnitus was commonly related to hearing loss, and can occur subsequent to even a single incident of exposure to loud noise. Given that the Veteran served in a combat zone, and noise exposure was conceded, in addition to the fact that in-service, audiometric data shows an adverse effect to the auditory system during that time, it was reasonable to believe that the Veteran's tinnitus was secondary to hearing loss, and at least as likely as not related to in-service noise exposure/injury. The Board further notes, in regard to the Veteran's assertion that he experienced hearing loss at the time of separation, the Veteran is competent to report in-service symptomatology, such as decreased hearing and ringing in the ears, from his period of service to the present. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the evidence is deemed credible, as his military service is commensurate with his claims of in-service acoustic trauma. The Veteran's lay statements have been afforded significant probative value due to their competency and credibility in the context of this appeal. These statements are further reinforced by the VHA opinion of May 2013, which indicated that threshold shifts during service, as well as current audiograms indicative of noise-inducted hearing loss, provided a link between the Veteran's diagnoses of hearing loss/tinnitus, and in-service acoustic trauma. Although the VA medical opinions of record were negative, the opinions did not consider the factors enunciated in Hensley, which specifically state that the absence of qualifying hearing loss at the time of discharge from service does not preclude the possibility that subsequent hearing loss is related to service. Therefore, the most probative medical evidence of record, coupled with the Veteran's competent and credible lay statements, establishes that his current hearing loss and tinnitus are related to in-service noise exposure. The Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus are granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs