Citation Nr: 1328191 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-01 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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 ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied the claims on appeal. In November 2011, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. In July 2012, subsequent to issuance of the most recent Supplemental Statement of the Case (SSOC), also in July 2012, the Veteran submitted additional 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). A review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, the July 2013 appellate brief. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is attributable to the noise exposure he experienced during active service. 2. The Veteran's tinnitus is attributable to the noise exposure 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, including whether there was substantial compliance with the November 2011 Board remand directives, 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. When there is equipoise, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the time of his September 2006 claim, the Veteran asserted that he was exposed to very loud noises during service, during weapons training, to include basic and advanced infantry training and officer candidate training, especially from April 1965 to March 1966. He reported noise exposure from the propellers of airplanes during airborne (jump) school. In his April 2007 Notice of Disagreement (NOD), the Veteran also reported noise exposure from the computer sorters and punch cards he used in accounting work. In a November 2006 statement, the Veteran reported that after his military service, he was not exposed to long periods of noise, and that he was an accountant. The Veteran's service personnel records, specifically, his service separation forms, his DD-214s, indicates that his military occupational specialty (MOS) during his service from April 1965 to February 1966 was infantry and operations intelligence specialist, and that his MOS during his service from February 1966 to April 1968 was finance. The Veteran has offered competent testimony as to his in-service noise exposure; and there is no indication that he is not credible. Layno. The Board thus has considered the Veteran's competent and credible lay statements, as well as his MOS concerning infantry operations, and concedes that the Veteran experienced noise exposure in service as a result of his military duties. The Veteran's service treatment records include audiometric findings. Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. On an enlistment examination in February 1965, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) NR 0 (5) LEFT 0 (15) 0 (10) 0 (10) NR 5 (10) During an additional examination in November 1965, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Finally, during the Veteran's January 1968 separation examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -10 NR 10 LEFT -10 -10 -10 -5 -10 At the time of the Veteran's January 1968 separation examination, he denied hearing loss; and while he reported "ear, nose, and throat trouble" on examinations in November 1965 and January 1968, during the January 1968 examination, he reported a history of nose surgery. A February 1985 private audiogram is of record. In pertinent part, the Veteran demonstrated left-ear hearing acuity of 60 decibels at 4000 Hertz. There is thus evidence of an auditory threshold of 40 decibels or greater in one of the specified frequencies, and the Veteran's left-ear hearing loss met the VA requirements for consideration as a disability in as early as February 1985. 38 C.F.R. § 3.385. As to the right ear, the VA requirements for consideration of hearing loss as a disability were not met until June 1990. At that time, a private audiogram indicates that, in pertinent part, the Veteran demonstrated right-ear hearing acuity of 60 decibels at 3000 Hertz. There is thus evidence of an auditory threshold of 40 decibels or greater in one of the specified frequencies, and the Veteran's right-ear hearing loss met the VA requirements for consideration as a disability in as early as June 1990. 38 C.F.R. § 3.385. Private treatment records dated in August 1994 indicate that the Veteran was evaluated for hearing aids. An undated case history is attached, indicating that the Veteran reported hearing loss, first noticed "several years ago", and reported a history of noise exposure to include three years of military service. VA treatment records dated in August 2006 indicate that the physician reported that the Veteran was in the Vietnam war and was involved in many troop exercises involving gunfire and explosions, and reported that the Veteran complained that after he left the war he slowly began having hearing loss that required hearing aids in his early 40's. The physician opined that the onset of the Veteran's symptoms were temporally related to his time in service and that most likely, his hearing loss is secondary to noise exposure. The Board notes here that by a January 2008 statement, the Veteran asserted that there was an error in the record and that he did not report that he served in Vietnam. As the physician rendered his opinion considering the Veteran's reported experience with troop exercises involving gunfire and explosions, noise exposure not necessarily specific to Vietnam, further considering of whether the physician's opinion must be corrected is not required. On VA examination in January 2007, the Veteran reported his in-service noise exposure, as discussed above. He also reported that he trained with all types of small arms, and did not recall the use of any hearing protection. He denied post-service occupational or recreational noise exposure. He reported constant bilateral tinnitus, beginning "at least" 20 years prior. The Veteran underwent audiometric testing, revealing bilateral hearing loss that meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The examiner opined that the Veteran's bilateral hearing loss and tinnitus are less likely caused by or a result of his military service. She reasoned that the Veteran's hearing acuity at entrance and separation from service was normal, and that such indicated that the Veteran separated from service with normal hearing and damage to his hearing did not occur while he was in service. The Board sought an opinion from the January 2007 VA examiner as to whether the Veteran's bilateral hearing loss and tinnitus were the result of noise exposure in service, considering that normal hearing at separation alone does not always preclude establishing service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In a December 2011 response, the VA examiner rendered a negative etiological opinion, that the Veteran's bilateral hearing loss and tinnitus are less likely caused by or the result of his military noise exposure. She again noted the Veteran's normal hearing acuity on entrance and separation from service, and noted that he denied hearing loss at his service separation examination. She opined that there was no evidence of significant changes in the hearing thresholds that would be suggestive of noise injury. She reasoned that research studies have shown that hazardous noise exposure has an immediate effect on hearing, without delayed onset or a progressive or cumulative course. She reported that the presence of noise exposure does not always produce hearing loss, and that auditory damage from acoustic trauma occurs instantly, which is why normal hearing acuity at separation cannot be disregarded even if there is an acknowledged history of military noise exposure. It is clear that the August 2006 VA physician and the VA examiner who offered the January 2007 opinion and December 2011 addendum disagree as to the etiology of the Veteran's bilateral hearing loss. The Board finds no basis upon which to limit the probative value of either opinion. There is thus equipoise, as to the medical evidence regarding the etiology of the Veteran's bilateral hearing loss, and the resolution of doubt is in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, at 53. While the August 2006 VA physician did not have the opportunity to review the claims file, such is not required. The Court in Nieves-Rodriguez v. Peake, 22 Vet App. 295 (2008), held that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for medical opinions. The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). The Veteran reported experience during service with troop exercises involving gunfire and explosions, a history of noise exposure the Board has found competent and credible; as well as gradual hearing loss resulting in the need for hearing aids when he was in his 40's, a history evidenced in private treatment records associated with the claims file. The Veteran does not assert that he had demonstrable hearing loss when he separated from service; instead he offers that his hearing acuity has decreased slowly since that time. Thus, the fact that the physician was unable to review the Veteran's service treatment records containing evidence of normal hearing acuity during and at separation from service does not preclude him from offering a sufficient nexus opinion. His opinion that the Veteran's bilateral hearing loss is related to service, with reasoning that the Veteran's symptoms were temporally related to his time in service, is thus probative evidence in the current appeal. Also probative is the December 2011 VA addendum opinion. The VA examiner clearly disagrees with the August 2006 VA physician in that bilateral hearing loss may progress gradually related to prior noise exposure. She considered the relevant facts, the Veteran's history of in-service noise exposure and his lay statements of gradually decreased hearing acuity since separation from service, as well as evidence of normal hearing acuity at separation from service, and came to a reasoned conclusion. The Veteran's bilateral hearing loss is a disability for which service connection may be granted on a presumptive basis, and the Board has thus considered whether there is evidence of bilateral hearing loss within one year of separation from active service, in this case, April 1969; and whether there was evidence of continuous bilateral hearing loss since active service. Walker, 708 F.3d 1331. As discussed above, in the undated case history attached to the August 1994 treatment record, the Veteran reported that he noticed his bilateral hearing loss "several years ago." In August 2006, during VA treatment, he reported that after service, he slowly began having hearing loss after service. While tinnitus is not considered a chronic disability by VA, on VA examination in January 2007, he reported a history of constant tinnitus for "at least" 20 years. The Veteran is competent to report the sensation of decreased hearing acuity and tinnitus and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, at 470. The Board notes here that the January 2006 VA physician and December 2011 VA examiner failed to specifically include tinnitus in their discussion. The Veteran filed his claim in September 2006 for service connection for bilateral hearing loss and tinnitus, and his August 2006 treatment includes notation that such was in connection with his claim for benefits. It is not clear if the Veteran failed to complain of tinnitus at the time of his August 2006 treatment or if the physician failed to consider any reported tinnitus or rendered his opinion considering the Veteran's auditory symptoms of both bilateral hearing loss and tinnitus. Also, while the Board specifically sought an opinion as to both bilateral hearing loss and tinnitus, the examiner, in January 2007 and December 2011, only essentially provided an explanation as to her negative opinion regarding the hearing loss. Due to the favorable decision as to the Veteran's bilateral hearing loss, his conceded in-service noise exposure, and his competent and credible lay statements that he experienced tinnitus "at least" 20 years prior, the Board finds that a remand, with subsequent delay, solely to consider the etiology of the Veteran's tinnitus, is not required. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Based on the forgoing, there is probative evidence of current bilateral hearing loss and tinnitus, as well as in-service noise exposure. There is relative equipoise in the VA opinions of record as to the etiology of the Veteran's bilateral hearing loss, considered by the Board to include his symptoms of tinnitus. 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