Citation Nr: 1329007 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-14 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1948 to February 1952. His military service included patrol and reconnaissance flights over Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In February 2013 the Board remanded the case with instructions to schedule a Travel Board hearing. Such hearing was held in August 2013 before the undersigned Veterans Law Judge sitting at the RO. A transcript has been associated with the claims file. Thus, the Board finds that there has been substantial compliance with the remand order and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). FINDINGS OF FACT 1. The evidence shows that bilateral hearing loss was incurred in service. 2. The evidence shows that tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determinations in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may also be shown by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of recurrent symptoms. 38 C.F.R. § 3.303(b). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and an organic disease of the nervous system, including sensorineural hearing loss (SNHL), manifests to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1110, 1112, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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); Jandreau. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes at the outset that in a March 2011 statement of the case, VA conceded that the Veteran was exposed to excessive noise in service. The Board concurs with this finding, as it is consistent with his duties as a radar operator on numerous combat missions flying over Korea. I. Bilateral hearing loss The Veteran contends that his bilateral hearing loss began in service as the result of exposure to excessive noise, and has continued to the present. As discussed earlier, his exposure to excessive noise in service has been established. The Veteran has been diagnosed with current bilateral hearing loss disability for VA disability adjudication purposes. For 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, 4000 Hertz is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the above frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Private treatment records and the April 2010 VA examination provide three audiograms dated between November 2009 and April 2011, all of which show auditory thresholds that meet the criteria for hearing loss for VA purposes bilaterally. The VA examiner and 2011 private audiologist both diagnosed bilateral SNHL. The Board finds that the Veteran has a current bilateral hearing loss disability for VA adjudication purposes. The remaining inquiry is whether the Veteran's hearing loss is related to his service. The Veteran's service treatment records do not document any complaints or findings of hearing loss in service. His military entrance and separation examinations reveal a whisper test of 15/15. Audiometric testing was not reported. However, VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service, if evidence is received showing that a current disability is causally related to service. Hensley, 5 Vet. App. at 159. The Veteran has consistently and competently reported, through lay statements and hearing testimony, that his bilateral hearing loss originally manifested in service and has continued to the present. Layno. In his November 2009 claim application, he stated that his hearing loss began in 1949, while he was still on active duty, as the result of prolonged exposure to aircraft engine noise without hearing protection. The record shows that the Veteran had no significant post-service occupational or recreational noise exposure. He testified that the separation examination was very cursory. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of hearing loss symptoms. The Veteran has consistently reported that the hearing loss had its onset during service and has continued ever since. His description of exposure to excessive noise has also been consistent. Caluza. Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his hearing loss symptoms began during his military service and have continued to the present time. The April 2010 VA examiner opined that the Veteran's current bilateral hearing loss is less likely than not caused by or a related to military service, because his hearing was within normal limits at discharge, and there were no documented complaints of hearing loss at discharge. However, the lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible. Buchanan. Here, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service, and their recurrence thereafter. The examiner provided no reason for rejecting the Veteran's lay history, especially in light of his excessive noise exposure in service. Based on the foregoing, the Board finds this opinion is not probative. When certain chronic diseases are not present during service, service connection may be shown by evidence of recurrent symptoms. 38 C.F.R. § 3.303(b). In this case, organic disease of the nervous system, including SNHL, is an enumerated chronic disease under 38 C.F.R. §3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has consistently, credibly, and competently reported continuity of symptoms since service. As such, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. II. Tinnitus The Veteran contends that his tinnitus began in service as a result of exposure to excessive noise, and has continued to the present. As discussed earlier, his exposure to excessive noise in service has been established. The Veteran has a current diagnosis of bilateral tinnitus. Specifically, the VA examiner and private audiologists all diagnosed tinnitus. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported to the 2010 VA examiner and 2011 private audiologist that his tinnitus began during his military service has continued and worsened ever since. In his claim application he stated that he developed a low level ringing during his combat missions that eventually increased to the point that it became unbearable at times, leading him to file the claim. He testified at his hearing that he did not have ringing in his ears when he entered service, but developed it in service and has had it constantly ever since. He did not seek medical attention for the ringing because when he mentioned it to superiors and colleagues, he was told to "suck it up" and that it might go away when he was no longer flying or around engines. However, the ringing did not go away after he left the service. He testified that none of his colleagues who had the same symptoms sought treatment either: "It's something that you live with" but it is always in the background. The Veteran's service treatment records are negative for complaints of tinnitus. Nevertheless, he is competent to report a history of tinnitus that began in service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of tinnitus symptoms. The Veteran has consistently reported that the ringing in his ears had its onset during service and has continued ever since. His description of exposure to excessive noise has also been consistent. Caluza. Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his tinnitus symptoms began during his military service and have continued to the present time. The VA examiner opined that the Veteran's tinnitus was not related to service because there was no evidence documenting a complaint of tinnitus during military service. However, that lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible. Buchanan. Here, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of the onset of symptoms in service, and their recurrence thereafter. The examiner provided no reason for rejecting the Veteran's lay history. Based on the foregoing, the Board finds this opinion is not probative. A treatment record dated in April 2011 includes the opinion of a private audiologist that the Veteran's bilateral constant tinnitus is at least as likely as not a result of his service. She noted that she did not review any service records, but based her opinion on the Veteran's report of symptoms and noise exposure. A review of the claims file is not required for a medical opinion to be probative, because a medical expert can be fully informed of the pertinent factual premises (i.e., medical history) of the case by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). In this case, the 2011 audiologist based her opinion on a medical history provided by the Veteran, which the Board has found to be credible. Thus, the Board finds her positive nexus opinion to be probative. Finally, lay evidence can be competent and sufficient evidence to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson; Jandreau. In this case, under Charles the Veteran is competent to identify the medical condition of tinnitus and his lay testimony describes ringing in the ears in service that supports the later diagnoses by the VA examiner and private audiologists. The Board thus finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus. Moreover, the probative medical opinion evidence of record is in favor of the claim. Therefore, service connection for tinnitus is warranted. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs