Citation Nr: 1331353 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-01 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to October 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2012 and June 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss is a result of his military service. 2. Resolving all reasonable doubt in the Veteran's favor, tinnitus is caused by his bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.385 (2013). 2. The criteria for service connection for tinnitus as secondary to bilateral hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for bilateral hearing loss and tinnitus, which constitutes a complete grant of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including bilateral hearing loss (as an organic disease of the nervous system), to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. Further, with chronic disease shown as such in service, or within an applicable presumptive period, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When a chronic disease identity is established in service, or within an applicable presumptive period, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). A veteran's lay statements may be sufficient evidence in any claim for service connection. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The Veteran contends that he currently has bilateral hearing loss and tinnitus as a result of noise exposure in service from small weapons fire, artillery fire, and heavy equipment. Thus, he argues that service connection is warranted for bilateral hearing loss and tinnitus as a consequence of his military service. The Court has held that service connection may be granted for a hearing loss 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). The Court has also held that VA regulations do not preclude service connection for a hearing loss that first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The few service records available for the Veteran are negative for complaints, treatment, or diagnosis pertinent to hearing difficulty. However, post-service records demonstrate a diagnosis of bilateral hearing loss. Specifically, at the July 2013 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 65 60 60 LEFT 40 45 65 60 60 Speech audiometry revealed speech recognition ability of 40 percent in the right ear and of 68 percent in the left ear. The Veteran was diagnosed as having sensorineural hearing loss in both ears. Therefore, the Board finds that the contemporary medical evidence demonstrates a current bilateral hearing loss as defined by 38 C.F.R. § 3.385. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran is competent to describe his tinnitus symptomatology, and such subjective complaints have been documented by the medical evidence of record, to include the April 2013 and July 2013 VA examinations. As a result, the Board finds that the Veteran has a current diagnosis of tinnitus. Initially, the Board notes that the first medical diagnosis of hearing loss in the record is that provided at the May 1987 occupational audiogram. Thus, the record fails to reveal that bilateral hearing loss manifested to a compensable degree within one year of the Veteran's discharge in October 1952. As such, presumptive service connection is not warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regard to direct service connection, however, the Board observes that there are conflicting medical opinions of record. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A December 2001 VA examiner opined that the Veteran's hearing loss was most likely due to noise exposure. However, the examiner identified noise exposure from equipment and weapons used during military service from 1950 to 1952, as well as 37.5years of noise exposure while working around heavy equipment at Whites Sands Missile Range. The examiner then found that, while both of these experiences may have contributed to the Veteran's present hearing loss, without a hearing test from 1952, he could not determine how much of the hearing loss may be service-connected. He stated that he suspected that the Veteran's work at White Sands Missile Range was the cause of the majority of his hearing loss. In May 2012, a private ENT physician stated that it is a well known fact that hearing loss is a cumulative progressive disease started by exposure to loud noise and progressing through a lifetime. The physician indicated that there is a falling off of hearing with the normal aging process as well. Because the Veteran had active duty and was exposed to a great deal of mortar noise, the physician found with a greater than 50% probability that the Veteran's hearing loss was indeed started while he was on active duty and has progressed slowly through the years. The physician stated that hearing loss is a cumulative progressive disease initiated by his initial exposure to noise. He offered no etiological opinion with respect to the Veteran's tinnitus. The Board notes that the private physician did not indicate review of the claims file, but finds that this fact alone does not render that examination inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The physician's reported knowledge of the Veteran's post-service occupational noise exposure is incomplete when compared with the Veteran's May 2000 submission describing his history in that regard. However, the physician's knowledge of the Veteran's in-service noise exposure is accurate and the opinion that the hearing loss was initiated by the noise exposure in service is independent of any hearing loss and noise exposure from after service that is noted the claims file. Therefore, the Board finds that the lack of claims file review does not render the opinion inadequate, in contrast to the finding of the April 2013 VA examiner with regard to the private opinion. Also in contrast to the April 2013 VA examiner's comments, the Board finds that the physician's rationale that hearing loss begins with noise exposure and accumulates over time is sufficient for the opinion that the Veteran's loss of hearing started in service, given that the Veteran's noise exposure in service is not in question. An April 2013 VA examiner noted the Veteran's extensive civilian occupation noise exposure as discussed in his March 2000 submission. That submission reports civilian noise exposure of 8 hours per day 5 days a week as a bus driver from 1959 to 1964 and as Mobile Equipment Tester from 1964 to 1968. From 1968 to the present, the Veteran reported working as a Training Instructor (Driving) giving road tests on all types of tactical military and commercial trucks buses forklifts engineering equipment and generator sets (diesel & gas). Noise exposure was 5 days a week approximately 1 to 2 hours a day. The examiner found that, based on a preponderance of the evidence in the claims file, while military noise exposure was conceded, the Veteran's civilian occupational noise exposure, possibly with contribution from presbycusis, was a far more likely etiology for the Veteran's current hearing loss than his brief history of noise exposure during military service. For the same reasons, the examiner found that the Veteran's tinnitus was less likely as not caused by or a result of military service. Finally, the July 2013 VA examiner noted that the Veteran served in the military for two years, during which he experienced unprotected noise exposure from mortars, artillery, and trucks. The examiner then stated that the contemporaneous hearing test results were worse than what is expected for "someone with 40 years of military noise exposure" and there is no evidence based research that suggests that noise induced hearing loss has a delayed onset. The Board notes that the Veteran had military noise exposure 40 years ago, which, given the next comment regarding delayed onset, is what the Board presumes the examiner meant since the Veteran did not have the 40 years of military noise exposure. The examiner also noted that the Veteran reported 37.5 years of occupational noise exposure while working at White Sands Missile Range both with and without the benefit of hearing protection. In addition, the examiner noted threshold shifts while working at White Sands Missile Range when comparing hearing evaluations from during his employment. The examiner then concluded that the Veteran's hearing loss is less likely than not related to military noise exposure. With respect to the Veteran's tinnitus, the examiner stated that the Veteran has a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Based on the above evidence, the Board finds that the evidence that the Veteran's hearing loss began in service is in equipoise. While the April 2013 and July 2013 VA examiners found that the Veteran's hearing loss is less likely as not related to military noise exposure, neither examiner discussed the lay statements supplied by the Veteran that discuss his complaints of hearing difficulties in service or his own statements that his hearing loss began in service. Further, neither examiner contradicted the finding of the May 2012 private physician that the Veteran's loss of hearing acuity began with the noise exposure in service. The Board observes that the December 2001 VA examiner's opinion is speculative in that he finds that the noise exposure in service "may" have contributed to the present hearing loss and that he "suspects" that the majority of the hearing loss is due to post-service noise exposure. Under VA regulations and Court decisions, service connection may not be based on pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Perman v. Brown, 5 Vet. App. 237, 241 (1993). Nevertheless, the rationale for the opinion that indicates that the examiner could not determine how much hearing loss began in service without a 1952 (separation ) audiogram supports the May 2012 private physician's finding that the Veteran's loss of hearing acuity while cumulative, began in service. The April 2013 VA examiner does not address whether any of the Veteran's current hearing loss could have occurred in service. Meanwhile, the July 2013 VA examiner's negative opinion is based on a finding that the Veteran's current hearing loss was worse than would be expected from his two years of noise exposure during the military, which implies that the examiner was considering only if the total accumulated hearing loss was due to military noise exposure. With respect to the Veteran's tinnitus, the Board observes that his claim and supporting statements indicated that he has had tinnitus since service. A May 1992 audiogram is the first clinical record of complaints of "buzzing" in the ears. The only opinions as to the etiology of the Veteran's tinnitus are those of the April 2013 and July 2013 VA examiners. The April 2013 VA examiner only addressed whether the Veteran's tinnitus was due to military service, and did not offer an opinion as to whether it was associated with the Veteran's hearing loss. Thus, the positive nexus between the Veteran's hearing loss and his tinnitus provided by the July 2013 VA examiner is not contradicted by any other evidence of record. Consequently, the Board determines that the Veteran's tinnitus is at least as likely as not caused by his bilateral sensorineural hearing loss. It is important to point out at this juncture that 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 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. Based on the above, the Board finds that the evidence is in relative equipoise. Thus, when resolving all doubt in the Veteran's favor, the Board finds that there is a causal relationship between the Veteran's military service and his current bilateral hearing loss and between his bilateral hearing loss and tinnitus. Accordingly, service connection for bilateral hearing loss and tinnitus is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted as secondary to his bilateral hearing loss. _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs