Citation Nr: 1330154 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-27 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran has current diagnoses of bilateral hearing loss and tinnitus. 2. The Veteran experienced in-service acoustic trauma while working on the flight line in the Air Force. 3. The Veteran's bilateral hearing loss and tinnitus are as likely as not attributable to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting service connection for both bilateral hearing loss and tinnitus, and this represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Merits of the Claim The Veteran asserts that he has bilateral hearing loss and tinnitus that are the result of exposure to acoustic trauma during his military service. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable 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, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). 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, or 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 Veteran served in the Air Force as a Weapon Control System Mechanic. He reported working on the flight line under constant exposure to excessive noise stemming from fighter jets. He reported being issued ear protection, but stated he had to remove the protection constantly in order to communicate effectively in his team. He also reported exposure to loud noises while in basic training in the form of both simulated and non simulated explosions, as well as gunfire. The Veteran reported that he often had headaches and ringing in the ears while on the flight line, but was told the symptoms would go away. The Veteran had four audio evaluations in service. His pure-tone thresholds, measured in decibels, were as follows: December 1963 (entrance examination, converted from ASA to ISO): 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 5 0 0 x -5 x Left 15 5 10 x 0 x October 1965, converted from ASA to ISO: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 5 0 0 0 -5 -10 Left 10 0 0 0 -5 -5 July 1967, converted from ASA to ISO: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 15 10 10 10 5 10 Left 20 20 20 20 15 20 November 1967 (separation examination): 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 10 5 15 5 10 45 Left 15 5 15 5 15 25 The Veteran's service treatment records (STRs) contain one instance of ear-related treatment. In June 1965, the Veteran reported an ear ache and the examiner noted otitis. The Veteran submitted a private audio evaluation from August 2007, which diagnosed him with noise induced sensorineural hearing loss, bilateral, slightly worse in the right ear than the left. The private doctor stated "his hearing loss is most likely due to noise exposure when he was in the service being exposed to noise while he was on the flight line." The Veteran received a VA examination for his hearing loss and tinnitus in January 2008. The examiner noted that the Veteran reported constant tinnitus, which began "many years ago." The examiner noted that the Veteran denied any occupational or recreational noise history. The Veteran's pure-tone thresholds, measured in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average Right 15 35 40 50 60 46.25 Left 10 25 35 40 55 38.75 On the Maryland CNC speech recognition test, the Veteran scored 94 percent on the right ear and 96 on the left. After testing, he was diagnosed with bilateral sensorineural hearing loss, mild to moderately severe. The examiner opined that the Veteran's hearing loss and tinnitus were "not caused by or a result of" his exposure to noise while working on the flight line in service. The examiner's rationale was 1) the Veteran's hearing loss was normal on two in-service audio exams, including his separation examination and 2) gradual hearing loss, as the Veteran described undergoing, was "not consistent with a noise loss which does not slowly progress when there is no further noise exposure." The absence of evidence of in-service hearing loss is not an absolute bar or preclusion to granting service connection for any later diagnosed hearing loss. The Court has held that, even though disabling hearing loss may not be demonstrated at time of separation from service, a veteran may nevertheless establish his entitlement to service connection for a current hearing loss disability by having evidence that the current disability is related to his military service and not the result of intercurrent or other unrelated factors or causes. See Hensley v. Brown, 5 Vet. App. at 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Because the VA examiner's rationale for his negative opinion was based around the idea that the Veteran should have experienced hearing loss soon after his claimed in-service noise exposure and yet did not have any disabling hearing loss documented in-service, the VA examination is deemed inadequate. Thus, more weight is placed on the positive opinion of the private doctor. Although there is no official documentation of the Veteran experiencing an in-service acoustic trauma, the Veteran's DD-214 confirms that he was a Weapon Control Systems Mechanic for the Air Force. As a mechanic in the Air Force, exposure to loud noise is consistent with the circumstances, conditions, and hardships of the Veteran's service. Thus, the Board finds that the Veteran was likely exposed to loud noise during his military service as he has stated. Likewise, the Board finds the Veteran's statement that he experienced ringing in his ears during service both credible and competent. While the Veteran did not report hearing loss or tinnitus during service or at his separation exam, and his pure tone thresholds were all "normal" while in service, his STRs show a threshold shift in his hearing from entrance to separation, as well as the instance of treatment for an ear ache. Furthermore, there is no evidence of record to indicate the Veteran has experienced any significant noise exposure since separation. The opinion from the private physician provides positive evidence in favor of the Veteran's claim that his hearing loss is related to service. While the physician did not provide a rationale for his opinion, he appeared to take the Veteran's history as he reported it as credible, which as noted above, is also considered credible by the Board, and also indicated that he had thoroughly reviewed the record and provided a thorough audiological examination. There are no other medical opinions of record addressing the etiology of the hearing loss. In weighing the favorable medical opinion, the conceded exposure to acoustic trauma in service, the worsening of the Veteran's hearing over his period of service, and the Veteran's statements regarding his hearing loss and tinnitus, the Board finds that the evidence is relatively equally balanced in terms of whether he has hearing loss related to his military service, and will resolve this reasonable doubt in the Veteran's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). Therefore, entitlement to 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. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs