Citation Nr: 1327707 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 13-02 341 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1958 to February 1959. He also had service in the Army Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 decision of the RO. The issue of service connection for a left ear hearing loss is reasonably raised by the record as the Veteran addressed the matter during his March 2013 hearing. It has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers it to the AOJ for appropriate action. A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 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). FINDINGS OF FACT 1. The Veteran's lay assertions of having in-service exposure to hazardous noise levels are consistent with his duties during service and are credible for the purpose of establishing the presence of right ear hearing problems and tinnitus beginning in service. 2. The currently demonstrated right ear sensorineural hearing loss and tinnitus are shown as likely as not to have their clinical onset after the Veteran's exposure harmful noise levels while service with a field artillery unit during active duty. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his right ear hearing loss disability is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§3.102, 3.303, 3.385 (2012). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of compliance with VA's duty to notify and assist is not required at this time. Law & Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). 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. 38 C.F.R. § 3.303(d). In addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current right ear hearing loss and tinnitus are related to the exposure to hazardous noise levels in service. The Veteran testified during his recent hearing that he trained at Fort Sill, Oklahoma, where he learned to fire artillery during five weeks of initial training. He dated the onset of the ringing in his ears to the period of field artillery training in service. He also testified that, due to the elevated noise levels during training, his hearing would fade in and out and, after leaving the Reserve, his hearing continued to deteriorate. Furthermore, the Veteran reported having continued to train with artillery at Fort Sill for two weeks every year until 1966. As a civilian, he reported having had no significant noise exposure. The service treatment records do not show that the Veteran had complaints or findings of hearing problems during active service. In-service audiograms, to include the separation audiogram conducted in January 1959, showed (upon conversion to ISO ANSI units) that hearing was within normal limits during service. The puretone thresholds in decibels at the relevant tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, in the right ear were those of 20, 15, 10, 15, and 5 upon conversion to ANSI units, respectively. However, the Board notes that the absence of in-service evidence of hearing loss during the Veteran's period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155 (1993). An audiogram performed in May 1963 for promotion revealed that there was an upward threshold shift, by at least 5 decibels, in each of the pertinent frequencies (when comparing to the separation examination in January 1959). Puretone thresholds in decibels at the relevant tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, in the right ear were 30, 20, 15, [not indicated], and 10 upon conversion to ANSI units, respectively. Thus, records document diminished hearing acuity shortly after active duty service. The Veteran was afforded a VA examination in July 2011. The examiner took into consideration the Veteran's reports of symptomatology and conducted authorized audiometric testing. The results of testing for hearing acuity revealed that the Veteran had normal to severe sensorineural hearing loss in his right ear, and measured puretone threshold values indicated that he had a hearing loss disability pursuant to VA standards. See 38 C.F.R. § 3.385. The examiner also noted that the Veteran had constant "whole head humming "or tinnitus since 1975 without incident. In providing a negative nexus opinion, the examiner indicated that the records were silent for complaints of either hearing loss or tinnitus for 54 years after separation, and that the Veteran had normal hearing upon separation from service. However, as the Board finds that the examiner based her conclusion an inadequate supporting rationale, limited probative weight is assigned to the July 2011 VA examiner's opinion. The Board recognizes that a medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board accords little probative value to the July 2011 VA examiner's opinion. The Board notes that in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the Court held that hearing loss disability by the standards of 38 C.F.R. § 3.385 is not required during service, only currently. In fact, the laws and regulations do not specifically require complaints of, or treatment for, hearing loss during service in order to establish service connection. Id. Thus the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Tinnitus is a condition under case law where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). The Veteran is competent to describe symptoms of an injury or illness, such as loss of hearing, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As such, it is within the scope of the Veteran's competency for him to describe diminishing hearing capacity and the ringing in his ears, or tinnitus during service and thereafter. The Board finds the Veteran's assertion of experiencing manifestations of tinnitus and right ear hearing loss beginning in service to be credible. The Board does not dispute that the Veteran had exposure to hazardous noise levels in service. The Veteran's descriptions of noise exposure are consistent with his military occupational specialty of serving with field artillery unit. Considering the totality of the evidence, including the Veteran's assertions of having tinnitus and diminished hearing since service, the Board finds that the evidence is in relative equipoise in showing that each condition had its clinical onset during service. In resolving reasonable doubt in the Veteran's favor, service connection for right ear hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right ear hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs