Citation Nr: 1330606 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-21 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2011, the Board remanded the case to afford the Veteran a hearing. The Veteran testified before the undersigned at a November 2011 Travel Board hearing. The hearing transcript is of record. The case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Bilateral hearing loss is etiologically related to service. 2. Tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claims for service connection for bilateral hearing loss and tinnitus. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2012). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994) 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) (2012). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system. 38 C.F.R. § 3.309(a) (2012). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Accordingly, the Veteran's claims of continuity of symptomatology have been considered and addressed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, where hearing loss that is an organic disease of the nervous system manifested to a compensable degree within one year following separation from service, service connection shall be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that his currently demonstrated bilateral hearing loss and tinnitus developed as a result of noise exposure in service. Specifically, he claims that he served in the U.S. Army as an infantryman and truck driver, and was exposed to excessive noise from grenades, M-16 rifles, 2.5 and 5 ton trucks, as well as diesel, gasoline and engine explosions. Service treatment records show that the Veteran had hearing loss at the time of his entrance into service, but at the time of his discharge examination, his hearing was within normal limits. However, the Veteran's DD-214 shows that he received the sharpshooter (rifle M-16) badge. Thus, the Board finds that the conditions of the Veteran's service are consistent with his reports of noise exposure. 38 U.S.C.A. § 5104(a). In September 2009 and September 2012, the Veteran was evaluated by private audiologist, M.W. The Veteran complained of hearing loss and ringing in both ears, and reported, as noted above, that he served in the U.S. Army as an infantryman and truck driver, and was exposed to excessive noise from grenades, M-16 rifles, 2.5 and 5 ton trucks, as well as diesel, gasoline and engine explosions. M.W. concluded that the results of an audiogram conducted at that time showed bilateral, mild to moderate to severe to profound sensorineural hearing loss, and noted that the Veteran also reported constant, bilateral tinnitus. He diagnosed bilateral sensorineural hearing loss and tinnitus, and opined that the disabilities were at least as likely as not related to his military experience in the U.S. Army as an infantryman and truck driver. His rationale was that exposure to excessive noise from grenades, M-16 rifles, 2.5 and 5 ton trucks, diesel and gasoline engines and explosions results in acoustic trauma, hearing loss and tinnitus. It is not in dispute that the Veteran has current hearing loss and tinnitus. The question is whether the disabilities are related to service. Hearing loss and tinnitus are manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported that he was exposed to noise from artillery fire, such as M-16 rifles during service. Furthermore, a former military comrade, J.P., has reported that while at Fort Polk, on the rifle range, during basic training, he witnessed the Veteran trying to assist another soldier who was having trouble getting his rifle to fire, and the rifle went off close to the Veteran's ear. He also reported that he observed the Veteran's ears bleeding after the incident, and heard the commanding officer tell him to "suck it up." J.P. contends that the Veteran has had hearing problems since that incident. See lay statement from J.P. Based on this evidence, the Board finds the Veteran's reports of noise exposure in service credible. He has also provided competent evidence of a continuity of symptomatology, and his private physician has also provided a medical opinion linking his current hearing loss and tinnitus to service. There is no medical opinion against that of the private audiologist, and that opinion was based on an accurate history and supported by an implicit rationale; it is thus adequate. There is evidence against the claim, inasmuch as the contemporaneous record does not document hearing loss or tinnitus for many years after active duty. The evidence is, however, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claims are granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs