Citation Nr: 1330774	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  10-34 712	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from September 1972 to September 1975.

These matters come before the Board of Veterans' Appeals (BVA or Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.

In September 2011 the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC.  A transcript of the hearing has been associated with the Veteran's claims folder.

Pertinent medical records have been added to the claims file subsequent to the August 2010 statement of the case.  The Veteran has waived initial RO consideration of this evidence.


FINDINGS OF FACT

1.  The Veteran was exposed to acoustic trauma during his period of active military service.

2.  Giving the Veteran the benefit of the doubt, the objective medical evidence is in equipoise as to whether his current hearing loss and tinnitus are related to his in-service acoustic trauma.


CONCLUSIONS OF LAW

1.  Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013).

2.  Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable decision to grant the Veteran's claims of service connection for bilateral hearing loss and tinnitus, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 is rendered moot.

Laws and regulations

The Veteran asserts that he has hearing loss and tinnitus as a result of exposure to loud noises from tracked vehicles and tank fire during service.  The Veteran's DD Form 214 reflects that his military occupational specialty was Infantryman.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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).  

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 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).  This rule does not mean that any manifestations in service will permit service connection.  To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.  As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309.  Moreover, the concept of continuity of symptomatology as clarified by Walker is applicable in this case.  The Veteran's hearing loss is sensorineural in nature.

The Board observes that a veteran's "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456 (1992).

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

Analysis

The Veteran's August 1972 enlistment examination noted that the Veteran's ears were normal.  Audiometric findings were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
5
Not tested
Not legible
LEFT
20
15
5
Not tested
50

The Veteran's service treatment records noted no complaints or diagnoses relating to hearing loss, tinnitus, or any ear problems.  

The Veteran's August 1975 service separation examination noted that the Veteran's ears were normal.  Audiometric findings were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
10
Not tested
20
LEFT
5
5
15
Not tested
10

A January 2008 Commercial Driver Fitness Determination report indicated that the Veteran had mild high frequency hearing loss.

In a March 2010 statement the Veteran indicated that he served in the infantry during service and had driven a loud and noisy armored personnel carrier during that time.  He stated that when he went to the field he was subjected to loud and intense noise during the firing of tank guns.  The Veteran stated that the ear plugs they wore at that time offered little protection.  He also stated that he was cross trained as a tanker and had driven tanks in 1975.

At a March 2010 VA audiological examination the Veteran reported that he had been exposed to loud noise from tanks and machine guns during service.  The Veteran stated that after service he had worked as a welder and correctional officer until his retirement in 2008.  No recreational loud noise exposure was reported.  The Veteran stated that he had had constant bilateral tinnitus since serving in Germany.  The reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  The diagnosis was bilateral sensorineural hearing loss with associated tinnitus.  The examiner, after noting that the Veteran's hearing was within normal limits at service discharge, stated that it was not likely that the Veteran's hearing loss and tinnitus were related to noise exposure during active service.  The examiner reiterated her opinions in a July 2010 addendum.

In a May 2010 letter a physician essentially indicated that the Veteran's hearing loss and tinnitus could be related to noise exposure from his military service.  The physician stated, however, that she had not reviewed any of the Veteran's service treatment records.

At his September 2011 Board hearing the Veteran essentially indicated that he had been exposed to tank fire during service without always having proper ear protection.  He stated that as he had been subjected to loud noises his ears had been ringing ever since service and had not stopped ringing since that time.  The Veteran testified that an individual conducting his service separation hearing test had informed him that he had hearing loss.  He could not remember if following service he had undergone any pre-employment physicals in connection with job applications that included a hearing test.  The Veteran indicated that he could tell a difference in his hearing ability after he left active service.  

In October 2011 a private otolaryngologist (JE, MD) commented as follows:

After reviewing [the Veteran's] military history and completing the exam and doing audiometric evaluation, it would be my opinion that [the Veteran] has a rather significant high frequency sensorineural hearing loss and tinnitus that could only be caused by acoustic trauma during his military service.  It would be my opinion that [the Veteran] should be considered for benefits due to high frequency sensorineural hearing loss and tinnitus secondary to acoustic trauma during his military service.

As a preliminary matter, the Board finds that normal left ear and right ear hearing was demonstrated on examination for enlistment into service, and the presumption of soundness on induction attaches as to left ear and right ear hearing ability.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  In this regard, the March 2010 VA examiner has stated that the loss at 4000Hz in the left ear at the Veteran's service enlistment examination may have been due to a temporary threshold shift.  Further, hearing loss was not indicated on the Veteran's PULHES profile, as the Veteran's rating for hearing (H) reflects a 1 on the August 1972 service enlistment examination.

The evidence of record contains an opinion of etiology favorable to the Veteran's claims (Dr. JE's October 2011 opinion) and a March 2010 VA opinion that rejects the Veteran's claims.

Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  The professional credentials and experience of opinion providers are properly considered in assigning probative value.  Sklar v. Brown, 5 Vet. App. 140, 146 (1993).  A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000).  "[M]ost of the probative value of a medical opinion comes from its reasoning."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

With these considerations in mind, the Board finds that it is unable to distinguish the aforementioned opinions.  While it is unclear if Dr. JE reviewed the Veteran's service treatment records, the Board can find no indication that Dr. JE relied on any inaccurate medical history in formulating his opinion.  The Board also notes that both examiners provided a rationale for the opinions expressed, and the Board observes that both examiners have the requisite professional credentials to opine on hearing loss and tinnitus cases.  In this regard, the Board finds it significant that Dr. JE is a former Navy Flight Surgeon.  In sum, the medical nexus opinions in this case are at least in equipoise.

While the Board acknowledges that chronic hearing loss and tinnitus were not demonstrated in service, as noted, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).  In this regard, the Board observes that the Veteran served in and around military vehicles, including tanks, apparently oftentimes with little useful hearing protection.  The Veteran has given consistent and credible testimony concerning his military service and the noise exposure experienced therein.  In sum, the Veteran has provided credible evidence of a continuity of hearing loss and tinnitus symptomatology since service.  38 C.F.R. § 3.303(b).

While it may be argued that the competent evidence is in equipoise as to a nexus to service, in such cases, doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and 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.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs