Citation Nr: 1330429 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 12-07 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) and his daughter ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1952 to November 1954. He is in receipt of the Combat Infantryman Badge (CIB), among other military citations. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the record in this case. In July 2013, the Veteran and his daughter presented testimony relevant to the appeal at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. On the day of the Board hearing, additional medical evidence was received from the Veteran, which was accompanied by waiver. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). Accordingly, the Board will consider the new evidence in the first instance in evaluating the issues on appeal. Due to the Veteran's advanced age, 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). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran was exposed to loud noise during service. 3. The Veteran had chronic symptoms of bilateral sensorineural hearing loss during service. 4. The Veteran has had continuous symptoms of bilateral sensorineural hearing loss since service. 5. The Veteran currently has a bilateral sensorineural hearing loss disability for VA disability compensation purposes. 6. The Veteran's current tinnitus symptomatology had its onset during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, bilateral sensorineural hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(b), 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For reasons explained below, the Board is granting the Veteran's service connection claims for bilateral sensorineural hearing loss and tinnitus. Given the favorable outcome of the appeal, which is a full grant of benefits sought, the Veteran's claims have been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is defined as deafness due to a lesion in either the cochlea (sensory mechanism of the ear), the vestibulocochlear nerve, the central neural pathways, or a combination of these structures. See Dorland's Illustrated Medical Dictionary 818 (30th ed. 2003). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable with respect to that diagnosis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's currently diagnosed tinnitus is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable with respect to that claim. In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system (e.g., sensorineural hearing loss), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). Service Connection for Bilateral Sensorineural Hearing Loss Analysis The Veteran contends that he currently suffers from bilateral hearing loss due to military noise exposure. He asserts that he was exposed to the loud noise of mortar fire, weaponry, and combat while performing his duties as an infantryman during his tour of duty in Korea. After a review of the evidence, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. At the February 2010 VA audiological examination, pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 70 80 95 100 LEFT 15 30 75 95 95 The speech recognition score with the Maryland CNC Test was 48 percent for the right ear and 58 percent for the left ear. There is no indication that the audiometric results are unreliable or otherwise inadequate. The audiologist noted that the Veteran demonstrated severe to profound sensorineural hearing loss in the right ear from 1000 to 4000 Hertz (Hz) and mild sloping to profound sensorineural hearing loss in the left ear from 1000 to 4000 Hz with very poor speech discrimination scores bilaterally. The above evidence sufficiently establishes a "disability" of current bilateral hearing loss as defined by 38 C.F.R. § 3.385 (referred to as "impairment"), as the speech recognition scores using the Maryland CNC Test are less than 94 percent for both ears. Also, the auditory threshold at the 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz frequencies is 26 decibels or greater bilaterally. The auditory threshold from 1000 to 4000 Hz frequencies for the right ear is 40 decibels or greater, and the auditory threshold from the 2000 to 4000 Hz frequencies is 40 decibels or greater. The question of whether there is a current bilateral hearing loss disability for VA purposes is established; therefore, the Board will next consider whether the current hearing loss disability was incurred in service. The Board next finds that the evidence shows that the Veteran was exposed to loud noises (i.e., suffered acoustic trauma) during service. The Veteran's DD Form 214 shows that he had Korean service, served as an infantryman, and is in receipt of the CIB. The Veteran has reported being exposed to loud noise during his period of service. The Board finds that the Veteran's competent lay account of having been exposed to military noise is consistent with the circumstances, conditions, and hardships of his service and is, therefore, credible. 38 U.S.C.A. § 1154(b). The Board also finds that the Veteran experienced symptoms of sensorineural hearing loss during service. In this case, the Veteran's service treatment records are fire-related and unavailable for review. At the Board hearing, the Veteran testified that he received medical treatment for his ears from a field medic after shooting mortars in the field during service. The Veteran also reported that, during service, he experienced a total loss of hearing for a period of three days at three different times after "running up the front line," and had ringing in his ears at various times when firing mortar rounds. See Board hearing transcript, pages 5-9. The Veteran's competent lay account of having experienced ringing in the ears and a total loss of hearing at various times during service is consistent with the circumstances, conditions, and hardships of his service and is, therefore, credible. The Board further finds that the Veteran has experienced continuous symptoms of sensorineural hearing loss since service. When the Veteran presented for medical treatment of hearing problems in January 2002 (i.e., many years before filing the current claim), he told the treating VA physician that he had had difficulties with his hearing ever since he was in Korea. The Veteran's January 2002 statement made for treatment purposes is particularly credible because the Veteran had an incentive to report accurately the onset of his hearing difficulties when seeking medical treatment for various medical ailments, to include hearing problems. Also, on the March 2012 VA Form 9, the Veteran wrote that he has had hearing loss since discharge from active service, and he testified, at the Board hearing, that he has had hearing problems since service. See Board hearing transcript, pages 13-14. The Veteran's daughter also testified that she has known of the Veteran's hearing problems, to include his complaints about a roaring sound, "ever since she could remember" and well before the year 2002. See Board hearing transcript, pages 11-12. Although the Veteran may have told the February 2010 VA audiological examiner that his hearing difficulties began many years after service, the Board does not find the statement to be credible because it is inconsistent with the January 2002 statement made by the Veteran for treatment purposes relating the onset of hearing problems to service in Korea. The Board finds the January 2002 statement made for treatment purposes to be more credible and of greater probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Thus, although the Veteran's service treatment records are fire-related and unavailable for review in this case, the Veteran has presented credible lay evidence of chronic symptoms of bilateral hearing loss disability during service. Also, there is credible post-service lay and medical evidence of continuous symptoms of a bilateral sensorineural hearing loss disability since service separation. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is warranted for bilateral sensorineural hearing loss based on symptoms of hearing loss during service, and "continuous" symptoms after service. In granting presumptive service connection for bilateral sensorineural hearing loss above, the Board notes that the February 2010 VA medical opinion weighs against the grant of service connection for bilateral sensorineural hearing loss on a direct basis under the provisions of 38 C.F.R. § 3.303(d). However, the February 2010 VA medical opinion was primarily based on the inaccurate factual premise that the Veteran's hearing loss began many years after service and that there was no evidence of hearing problems until 2002. In fact, the Veteran has presented credible evidence of hearing problems during and since service, to include in a statement reflected in the January 2002 VA treatment record, and first mentioned having hearing problems related to active service in a letter submitted to VA in February 1982. Notably, the January 2002 VA treatment record, as well as the February 1982 letter, were of record at the time of the February 2010 VA audiological examination; therefore, the Board finds that the February 2010 VA medical opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)). Furthermore, because the appeal for service connection of bilateral sensorineural hearing loss has been granted based on presumptive service connection for a chronic disease due to continuous symptoms of bilateral hearing loss since service, analysis of other potential theories for entitlement to service connection of bilateral sensorineural hearing loss (i.e., on a direct basis under 38 C.F.R. § 3.303(d)) is not required. 38 U.S.C.A. § 7104 (no remaining questions of law or fact to decide). Service Connection for Tinnitus Analysis The Veteran also contends that he currently suffers from tinnitus due to military noise exposure. He contends that he currently has ringing in the ears as a result of the acoustical trauma sustained in service and has had tinnitus since service. After review of the lay and medical evidence of record, the Board notes that there is both unfavorable and favorable evidence on the question of whether the Veteran has tinnitus causally related to the period of active service. On the one hand, the February 2010 VA audiological examiner noted that the Veteran reported the onset of tinnitus symptomatology occurred sometime after service. The February 2010 VA examining audiological examiner also opined that tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss, which was less likely related to in-service noise exposure. On the other hand, the Veteran has reported noise exposure during service, and noise exposure is consistent with the circumstances, conditions, and hardships of his combat service. Also, the Veteran has stated that he experienced ringing in the ears during service and has had ringing in the ears since service. See, e.g., March 2012 VA Form 9. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). After consideration of the evidence, the Board also finds the Veteran's account of having had tinnitus symptomatology during and since service to be credible. Although at the February 2010 VA audiological examination the Veteran may have reported the onset of tinnitus symptomatology to a time after service, in statements made years before filing the current service connection claim, he related the onset of hearing difficulties to his period of active service. See, e.g., February 1982 letter from the Veteran and January 2002 VA primary care note. The fact that the Veteran related the onset of his hearing difficulties to his period of active service many years before filing the current claim and had no incentive to misreport the onset of such symptomatology at those times is significant, so the statements relating the onset of hearing problems to service are of great probative value. Also, the Veteran has provided credible hearing testimony of the onset of tinnitus symptomatology while firing mortar rounds during service and the continuation of tinnitus symptomatology thereafter. While the February 2010 VA audiological examiner opined that hearing loss and tinnitus were less likely related to acoustic trauma sustained in military service, the VA medical opinion was based on an inaccurate factual premise (i.e., that hearing difficulties, to include tinnitus, began many years after service); therefore, it is of no probative value. See Reonal, 5 Vet. App. at 461. The Board notes, however, that the February 2010 VA audiological examiner further opined that the Veteran's tinnitus was at least as likely as not a symptom associated with the Veteran's bilateral sensorineural hearing loss. Presumptive service connection for bilateral sensorineural hearing loss has been granted based on symptoms during service and continuous symptoms since service under the provisions of 38 C.F.R. § 3.303(b); therefore, in light of the grant of presumptive service connection for bilateral sensorineural hearing loss, the February 2010 VA medical opinion would indicate that service connection for tinnitus may be awarded on a secondary basis. See 38 C.F.R. § 3.310(a) (providing that service connection may be granted for disability which is proximately due to or the result of a service-connected disability). Regardless, the Board finds that the evidence both for and against the material issue of whether the Veteran has had tinnitus symptomatology since active service is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted on a direct basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs