Citation Nr: 1330183	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  10-35 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for hearing loss. 

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Joseph Aquilina, Associate Counsel







INTRODUCTION

The Veteran had active duty service from August 1968 to April 1971. 

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

A review of the Veteran's online Virtual VA records indicate there is no outstanding evidence relevant to this appeal. 


FINDINGS OF FACT

1. The Veteran's service records establish that bilateral hearing loss pre-existed entry into active duty service.  

2. The Veteran served in Vietnam and was awarded the Combat Medic Badge; exposure to acoustic trauma during active duty service is conceded.

3. The medical evidence establishes that Veteran's bilateral hearing loss increased during active duty service and thereafter.

4. The medical evidence establishes a nexus between the Veteran's tinnitus and active duty service.


CONCLUSIONS OF LAW

1. Pre-existing Bilateral hearing loss was aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306(a), 3.385 (2013).

2. Tinnitus was incurred in or as a result of active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As will be further discussed below, the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus are being granted in full. Therefore, the Board finds that any error related to the Veterans Claims Assistance of Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to these issues is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103, (2005). Thusly, there is no need to engage in any analysis with respect to whether the requirements of the VCAA have been satisfied concerning these particular matters on appeal. Furthermore, to the extent that there may be any due process concerns regarding the Board's review of the evidence recently obtained, there is no prejudice that will result from this full grant of the benefit sought. See Bernard v. Brown, 4 Vet. App. 384 (1993).

Service Connection

The Veteran is seeking service connection for hearing loss and tinnitus, contending that such disabilities are related to in-service acoustic trauma incurred during service as a combat medic and parachuter.

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).

Under ordinary circumstances for veterans of active duty wartime service or peacetime service on or after January 1, 1947, for purposes of 38 U.S.C.A. §§ 1110, 1131, and 1137, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002).  

In this case, as will be discussed in more detail below, the Veteran was noted to have hearing impairment at the time of entry into service, so VA does not have the burden of rebutting the presumption of sound condition with the high evidentiary standard of clear and unmistakable evidence (as defined by the Federal Circuit Court of Appeals in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) and Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011)) establishing both that (1) the condition existed prior to service and (2) the condition was not aggravated by service.  

Ordinarily, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(a) (2013).  If VA is unable to show, by clear and unmistakable evidence that any aggravation was due to the natural progression of the disease, then service connection is warranted based on a presumption of aggravation.  See Horn v. Shinseki, 25 Vet. App. 231 (2012). VA must rely on affirmative evidence to prove that there was no aggravation. If the Secretary fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition.  Id. at 235

The Federal Circuit Court of Appeals (Federal Circuit) has held that a corollary to the Secretary's definition of "disability" in 38 C.F.R. § 4.1 is that an increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability.  Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002).  The Federal Circuit stated: "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a . . . veteran to establish an increase in disability."  Davis, 276 F.3d at 1345; see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (The Federal Circuit held that 38 U.S.C.A. § 1153 requires some increase in the severity of the pre-existing condition causally related to military service). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(b) (2012).

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 the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2013).

The Veteran asserts a history of military noise exposure during service.  The Veteran's service personnel records factually establish that he served as a medical corpsman and paratrooper with the Combat Medic Badge for his service in Vietnam. The Veteran also reported during his June 2009 medical examination that he was exposed to machine guns, mortars and bombs during service. The Board concedes the Veteran's acoustic trauma based on his assertions and the service personnel records documenting a combat award.  As such, the Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) and (b) (West 2002).

The Veteran's service treatment records (STRs) demonstrate objective evidence of hearing loss during the entirety of his military career: pre-induction, throughout service and finally at his separation. The May 1968 pre-induction examination report revealed pure tone thresholds of 45 decibels at 4000 Hertz in the right ear and 50 decibels and 4000 hertz in the left ear, which meets the definition of hearing impairment as enunciated by 38 C.F.R. § 3.385.  This examination report also specifically notes "hearing loss" with the recommendation that the Veteran "seek advice from his physician" as well as noting that the Veteran "was not qualified for induction," yet the Veteran was subsequently inducted.  Hearing loss was also noted on numerous additional examinations spanning the Veteran's time in service in addition to audiogram results. The Veteran's separation examination report in April 1971 reveals the Veteran's audiometric readings increased across most of the frequencies, and he was diagnosed with bilateral partial "deafness" clearly indicating a worsening of hearing since induction.

A June 2009 VA audiological examination report was conducted for the purpose of evaluating the Veteran's hearing loss and provide an a conclusive and definitive nexus opinion regarding the likelihood of whether the Veteran's current bilateral hearing loss and tinnitus are related to service.  The examination report included a review of the claims file and pertinent evidence.  The examination report establishes that the Veteran has a current diagnosis bilateral sensorineural hearing loss that meets the criteria prescribed in 38 C.F.R. § 3.385 for a disability for purposes of VA compensation, as hearing thresholds in each ear that exceed 40 decibels at 2000, 3000 and 4000 Hertz. These results reveal a continuing worsening of the Veteran's hearing loss since service, and clearly establishes eligibility to claim entitlement to VA compensation for these audiological disabilities under 38 C.F.R. § 3.385.  The evidence also establishes a current diagnosis of tinnitus. The examiner's opinion is set forth as follows:

Hearing evaluation conducted at enlistment for active service duty in March 1968 revealed a high frequency hearing loss bilaterally. Pre-induction also revealed high frequency hearing loss.  Hearing evaluations in March and October 1960 also confirmed a similar hearing loss. At separation, April 1971, a stable high frequency hearing loss was noted. Although military noise has been conceded, it appears that hearing loss was present at enlistment to active duty in 1968. Therefore, this veteran's hearing was not caused by or a result of military noise exposure. 

While the examiner reviewed the Veterans' service treatment records, the Board finds that the opinion and rationale supplied are insufficient. The opinion fails to give any discussion of the aggravation of the Veteran's hearing loss from his pre-induction to the separation examinations and the consequent aggravation of audiological results. The opinion contains no discussion of whether such aggravation during service was due to the natural progression. When the examiner's opinion is considered in light of the evidence of clear aggravation of the Veteran's hearing loss during his time in service and since, the probative weight of the opinion is significantly undermined. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an incomplete and or inaccurate factual background).

In view of the above, there remains no affirmative evidence (i.e., clear and unmistakable evidence) to prove that there was no aggravation. Considering evidence of bilateral hearing loss upon entry into service, the Veteran's conceded in-service acoustic trauma based on his participation in combat, the evidence of increasing hearing loss in service, and the current diagnosis of bilateral hearing impairment that is now worse than at the time of discharge, the Board finds that upon resolution of doubt in favor of the Veteran, service connection for bilateral hearing loss on the basis of aggravation is warranted.

The Board has also considered the evidence regarding the Veteran's tinnitus, to include the fact that his tinnitus based on subjective reporting that began only recently. However, this decision grants the Veteran service connection for bilateral hearing loss, which is described as sensorineural hearing loss.  The Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. With regard to the latter, the evidence of record reflects that the Veteran's hearing loss is noise-induced, i.e., a result of his exposure to acoustic trauma during service.  In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Section 7, Ch. 85, Inner Ear. In the instant case, it is established that the Veteran has in-service high frequency hearing loss that has been aggravated by in-service acoustic trauma.  Consequently, the evidence discussed above is highly probative in favor of finding tinnitus associated with the noise exposure that is responsible for aggravating the Veteran's pre-existing hearing loss. 

The Board has considered the clinical evidence and the opinion of the VA examination. In view of the overall evidentiary picture, the Board finds that the evidence is at least in equipoise regarding the question of whether or not the current bilateral sensorineural hearing loss and tinnitus were aggravated as the direct result of service exposure to acoustic trauma. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board concludes that the facts of the case support a grant of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



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ORDER

Service connection for hearing loss is granted. 

Service connection for tinnitus is granted. 




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs