Citation Nr: 1329547 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-32 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and Son ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to July 1969, including service in the Republic of Vietnam from July 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2011, a videoconference hearing was held before the undersigned Veterans Law Judge. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Bilateral hearing loss had its onset in service. 2. Tinnitus had its onset in service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the claims for service connection for bilateral hearing loss and service connection for tinnitus disabilities. As this represents a complete grant of the benefits sought on appeal, no discussion of 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). 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 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. The Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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). To establish service connection for tinnitus, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in- service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). 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 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran contends that his service in the Republic of Vietnam resulted in exposure to loud noises from rockets, mortars and helicopter engines. Service treatment records are negative for complaints or findings of hearing loss or tinnitus. In a July 2009 private treatment record, Dr. Uthoff opined that the Veteran's chronic hearing loss related back to service. The physician stated that the hearing loss had been present and had worsened since that time. He noted that since service, the Veteran had not been exposed to excess noise. The physician opined that the Veteran's hearing loss was due to in-service noise exposure. In May 2010, the Veteran was afforded a VA audiological examination. He reported the onset of his tinnitus was "40 years ago." Clinical examination revealed mild to severe sensorineural hearing loss in both ears and a hearing loss disability pursuant to 38 C.F.R. § 3.385. The speech audiometry results showed that the Veteran's speech recognition ability was 80 percent in the right ear and 62 percent in the left ear. The examiner noted that the Veteran had normal hearing levels upon entry into both active duty service and the National Guard, and subsequent audiological examinations revealed normal hearing until 1987. The examiner reported that his only post-service exposure to noise was from turkey hunting. The examiner concluded that to specify the etiology of the Veteran's hearing loss and tinnitus would be speculative, but that the loss did not start during service. At the Veteran's March 2011 hearing, the Veteran testified that he was exposed to loud noise from rockets and mortars almost every day while in service. He stated that while in Vietnam, he flew in helicopters without hearing protection. He reported noticing ringing in his ears around the time of his separation. He reported that he cannot understand people when they speak to him because it is hard to hear them. He noted that he wore hearing protection while in the National Guard and that he was not exposed to any post- service loud noises. The Veteran's son stated that for as long as he can remember, the Veteran has had trouble hearing. In March 2011, the Veteran's wife submitted a statement in support of the Veteran's appeal. She stated that the she always has to repeat what she says louder for the Veteran to understand her. She noted that in 1972, when they first met, the Veteran told her that he could hear ringing in his ears. She also noted that when he watches television, the volume is turned up so loud that she cannot stay in the room. In July 2011, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). The specialist opined that it was as likely as not that the noise exposure in the military service contributed to the Veteran's hearing loss and tinnitus. The expert physician also noted that tinnitus is a common symptom of those with noise exposure affecting hearing, and that she believed that is was more likely than not that the tinnitus was related to the Veteran's service. The expert physician explained that there is recent evidence that noise exposure that does not result in permanent hearing loss does result in irreversible damage that is manifested later. An article abstract to support the physician's conclusion was included in the opinion. On these and other bases cited, the expert physician concluded with an opinion that it was more likely than not that the Veteran's hearing loss and tinnitus are service connected, at least in part. After a review of the entire record, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The record shows that the Veteran's pure tone thresholds meet the requirements to be considered to be a disability under 38 C.F.R. § 3.385. Further, tinnitus has also been diagnosed at the May 2010 VA examination. Additionally, the Veteran and others have competently attested that he has had a problem with his hearing and ringing since in-service acoustic trauma noise exposure due to helicopter noise and mortar and rocket fire. The May 2010 VA examiner concluded that the Veteran's record showed that his hearing loss and tinnitus were not service related. In the rationale, the examiner indicated that the Veteran was not suffering from hearing loss upon entry into the National Guard in 1973 and noted the length of time between the Veteran's separation and his first diagnosis of hearing loss. As noted above, the Veteran is not required to show that he met the criteria of 38 C.F.R. § 3.385 at separation if he has a hearing loss otherwise shown to have begun in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the examiner did not take into account the Veteran's competent report of symptoms since service. Conversely, both a private audiology record and in particular, the expert opinion offered by the VHA specialist, are persuasive and probative in support of the appeal. The VHA examiner reviewed the claims file and provided a fully articulated and detailed rationale that the Veteran's hearing loss and tinnitus are related to his service. The examiner noted that exposure to noise that does not result in permanent hearing loss does result in irreversible damage that is manifested later. Thus, the Board finds that the required nexus has been established 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. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs