Citation Nr: 1327723 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-00 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1979. He received the Army Commendation Medal. These matters initially came before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran testified before the undersigned at an April 2011 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. In July 2011, the Board remanded these matters for further development. The Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for multiple sclerosis and residuals of a cold injury to the feet, and the Board had remanded these issues in July 2011 for further development. In October 2012, the Appeals Management Center (AMC) granted service connection for multiple sclerosis and residuals of a cold weather injury to the feet, and thereby resolved the appeal as to these issues. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, bilateral hearing loss is related to service. 2. Resolving all doubt in the Veteran's favor, tinnitus is related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the claims of service connection for bilateral hearing loss and tinnitus, the claims are substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis 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. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (e.g. sensorineural hearing loss), is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once 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 ("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")). Service connection may also be granted for a disease first diagnosed after discharge 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system (including sensorineural hearing loss), are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is considered to be a disability for VA purposes 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 thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, a September 2011 VA examination report reveals that the Veteran has been diagnosed as having bilateral sensorineural hearing loss as defined by VA as well as tinnitus. See 38 C.F.R. § 3.385. Thus, current hearing loss and tinnitus has been demonstrated. The Veteran contends that his current hearing loss and tinnitus are related to exposure to loud noises in service associated with military weaponry and aircraft. He has not reported, and the evidence does not otherwise reflect, any other significant occupational or recreational noise exposure in the years since service. The Veteran's DD 214 reflects that his military occupational specialty was an infantryman and that he received the Air Assault Badge, Expert Infantryman Badge, and several Expert Badges pertaining to various weapons. He is competent to report in-service noise exposure. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Moreover, there is nothing to explicitly contradict his reports and they are generally consistent with the evidence of record and the circumstances of his service. Therefore, his reports of in-service noise exposure are credible and in-service acoustic trauma is conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). In his March 2007 claim (VA Form 21-526) and during the September 2011 VA examination, the Veteran reported that tinnitus had its onset in service. He is competent to report tinnitus in service. However, his reports must be weighed against the objective evidence and their credibility must be assessed. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. There is no evidence of any complaints of or treatment for tinnitus in the Veteran's service treatment records and his September 1979 separation examination was normal. He has provided varying statements as to the history of his tinnitus. For example, he reported on his March 2007 VA Form 21-526 and during the September 2011 VA examination that tinnitus had its onset in service (reported as beginning in 1976 on the VA Form 21-526). However, he reported on a September 1979 report of medical history completed for purposes of separation from service that he was not experiencing, nor had he ever experienced, any "hearing loss" or "ear, nose, or throat trouble." Also, he reported during an August 2008 VA examination that "he first noticed tinnitus" approximately 1 to 2 years following service. While the Veteran's statements concerning the history of tinnitus are not consistent, they essentially point to the onset of tinnitus in service or shortly thereafter and to this extent, they are considered reliable. There are conflicting medical opinions as to the etiology of the Veteran's current hearing loss and tinnitus. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). In letters dated in February 2008 and April 2010, Peter A. Silkowski, D.O. opined that it was "very likely" that the noise exposure that the Veteran experienced during his time in the military had contributed to his hearing loss, as well as his tinnitus which many times accompanies sensorineural hearing loss. He reasoned that the Veteran was an infantry soldier in service and that there was no question that he was exposed to small arms fire on multiple occasions in service. Also, he served as a mortar platoon member and experienced significant noise exposure due to the firing of mortars. Although his hearing was within normal limits during his September 1979 separation examination, it was not surprising that a soldier with significant noise exposure could develop progressive hearing loss long after the acoustic trauma had been inflicted. The Veteran continued to experience difficulty hearing and it was believed that this could be traced back to noise exposure in service. The audiologist who conducted the August 2008 VA examination opined that it was not likely that the Veteran's hearing loss and tinnitus were caused by noise exposure in service. She explained that audiologic test results during service reflected hearing which was within normal limits. Also, the Veteran had reported that tinnitus began 1 to 2 years following his time in service. Beverly Lewis, M.S., CCC-A opined in a March 2011 letter that the Veteran's hearing loss was likely ("likely as not") caused by excessive noise exposure that he experienced during service. This opinion was based on the fact that he had a history of excessive noise exposure (i.e. military infantry gunfire and helicopter engine noise). Clinical findings revealed a moderate high frequency sensorineural hearing loss in the right ear and a mild to severe low and high frequency sensorineural hearing loss in the left ear. The hearing loss pattern was typical of a noise induced hearing loss. The September 2011 VA examination report includes an opinion that it was not likely ("less likely as not") that the Veteran's hearing loss was caused by or a result of his military noise exposure. The audiologist who provided the opinion reasoned that the Veteran's hearing was within normal limits at the time of separation from service. Although she acknowledged that there was an "outside medical opinion" which indicated that the Veteran's hearing loss was caused by military noise exposure, she noted that the examiner who provided the opinion did not have the benefit of being able to review the Veteran's service treatment records which would have shown normal hearing at the time of separation from service. The audiologist further explained that the Institute of Medicine reported that, based on a current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. There was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after such noise exposure. Thus, there was no scientific basis on which to conclude that the Veteran's current hearing loss was caused by or the result of service, to include military noise exposure. With respect to tinnitus, the September 2011 audiologist opined that it seemed likely ("at least as likely as not") that it was caused by or a result of military noise exposure. This opinion was based on the fact that the Veteran had reported that tinnitus began during service. Therefore, there was no other reason for the tinnitus to have begun when it did other than military noise exposure. A VA surgical resident provided a second opinion in September 2011 that the Veteran's hearing loss and tinnitus were likely ("as least as likely as not"/ "50/50 probability") caused by or a result of in-service noise exposure. He reasoned that the Veteran had experienced significant noise exposure in service without the use of hearing protection. His audiogram demonstrated high frequency sensorineural hearing loss and this was consistent with hearing loss due to chronic noise exposure. In September 2012, the VA audiologist who provided the September 2011 opinion re-reviewed the Veteran's claims file and opined that it was not likely ("less likely as not") that the Veteran's current hearing loss was caused by or a result of military noise exposure. She explained that although the Veteran reported noise exposure in service, his entrance and separation examinations reflected that no hearing loss was present. Also, there was no significant threshold shift in either ear. Other medical providers who had offered differing opinions did not have the benefit of access to the Veteran's service treatment records. Thus, the audiologist concluded that such opinions should not be given as much weight. Overall, the etiology of the Veteran's hearing loss was unknown. With respect to tinnitus, the audiologist opined that it was likely ("at least as likely as not") that it was caused by or a result of military noise exposure. This opinion was based on the fact that although the Veteran's service treatment records were silent for tinnitus and he had reported during the August 2008 VA examination that the tinnitus began approximately 1 to 2 years following his separation from service, he reported during the September 2011 VA examination that tinnitus first began during service. Thus, there was no other reason for the tinnitus beginning when it did other than military noise exposure. The opinion of the examiner who conducted the August 2008 VA examination and the VA audiologist's September 2012 opinion pertaining to the Veteran's hearing loss are of little probative value because they are entirely based on a lack of objective clinical evidence of hearing loss and tinnitus in the Veteran's service treatment records. In this regard, a medical opinion based solely on the absence of documentation in the record is inadequate. Dalton v. Peake, 21 Vet. App. 23 (2007). The VA audiologist's September 2011 and September 2012 opinions pertaining to tinnitus and hearing loss are more probative. They note the lack of pertinent findings in service and cite to a medical treatise that supports the conclusion that hearing loss occurring at a time remote from acoustic trauma is not necessarily related to that acoustic trauma. However, Dr. Silkowski's February 2008 and April 2010 opinions, Dr. Lewis' March 2011 opinion, the VA audiologist's September 2011 opinion pertaining to the Veteran's hearing loss, and the September 2011 opinion of the VA surgical resident are all accompanied by specific rationales that were based upon a review of the Veteran's reported history and are not inconsistent with the evidence of record. While none of the opinions by itself is more probative than the VA audiologist's September 2011 and September 2012 opinions, when taken together they must be considered highly probative. At the very least, the evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to in-service noise exposure. Resolving all reasonable doubt in his favor, the Board concludes that the criteria for service connection for the currently diagnosed bilateral hearing loss and tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs