Citation Nr: 1331793 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 13-09 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1957 to September 1960. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2013, the Board remanded the issues of service connection for bilateral hearing loss and tinnitus to the RO for additional development. The case returns now for appellate consideration. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Please note 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 has current diagnoses of bilateral hearing loss and tinnitus. 2. The Veteran experienced acoustic trauma in service. 3. The Veteran has demonstrated continuous symptoms of bilateral hearing loss since service. 4. The Veteran's tinnitus is as likely as not a symptom associated with the bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159 (2013). As to the claims for service connection for bilateral hearing loss and tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2013). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); however, tinnitus is not. Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for bilateral hearing loss. Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including sensorineural hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 presumptive 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. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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). Service Connection Analysis for Tinnitus and Bilateral Hearing Loss The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus due to military noise exposure. He has submitted statements describing his in-service noise exposure while on the flight line as an air policeman and his belief that his in-service noise exposure caused his current bilateral hearing loss and tinnitus. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes. In a December 2010 VA examination, audiometric testing showed hearing loss disability in both ears as defined by VA regulations; therefore, a current disability of hearing loss for VA purposes is shown. See 38 C.F.R. § 3.385. Similarly, the evidence of record demonstrates that the Veteran has a current tinnitus disability. During the same December 2010 VA audiological examination, the Veteran reported recurrent, intermittent tinnitus in both ears. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 ("ringing in the ears is capable of lay observation"). There is no evidence in the record to suggest that the Veteran's account of having tinnitus is not credible. Next, the Board finds that the Veteran experienced in-service acoustic trauma. Specifically, the Veteran's DD Form 214 shows that the Veteran served on active duty as an air policeman. Moreover, at the December 2010 VA audiological examination and in the February 2011 rating decision, it was noted that the Veteran had highly probable acoustic trauma in service. Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. The Board further finds that the evidence is in relative equipoise on the question of whether the Veteran's current bilateral hearing loss is related to service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. The evidence of record demonstrates acoustic trauma in service and the Veteran has reported, in his March 2013 substantive appeal, that he noticed some loss of hearing acuity at the time of service separation and that his hearing continued to decline after service separation. He is both competent and credible to testify regarding such observable symptomatology. On the December 2010 VA examination and again on the July 2013 addendum opinion, the VA examiner opined that the Veteran's current hearing loss is less likely as not caused by a result of in-service noise exposure, reasoning that the Veteran's hearing was normal at service induction and service separation with no significant shifts (worse) in thresholds at any test frequency for each ear. Of note, prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. At the enlistment physical in July 1957, the Veteran's ears were found to be clinically normal. In an associated report of medical history, he denied having any problems with his ears. Audiometric testing was conducted in August 1957. The converted decibel thresholds are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 -5 LEFT 15 0 5 0 -5 At the service separation physical in August 1960, the Veteran's ears were again found to be clinically normal. In an associated report of medical history, he denied having any problems with his ears. During the separation physical, audiometric testing was conducted. The converted decibel thresholds are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 10 Not reported LEFT 30 15 10 10 Not reported Audiometric testing conducted at the August 1960 service separation physical, while not showing a hearing loss disability for purposes of 38 C.F.R. § 3.385, does reflect the Veteran experienced some degree of hearing loss at service separation with two audiometric test results above 20 dB. The VA examiner made the factually inaccurate assumption that the Veteran's bilateral hearing loss was within normal limits during service and at service separation. A medical opinion based on an inaccurate factual predicate is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds that the December 2010 VA opinion and July 2013 addendum opinion in regard to the etiology of the Veteran's hearing loss are of limited probative value. In his March 2013 substantive appeal, the Veteran stated that he first noticed slight hearing loss while still in service and that his hearing continued to decline after service separation to the point of requiring hearing aids. Additionally, in the December 2010 VA examination report, the examiner noted that, since 4000 Hz and 6000 Hz threshold frequencies were not tested at service separation, the possibility exists that hearing loss may have been present at those frequencies and was not identified. In the July 2013 addendum opinion, the examiner noted that, since the service separation physical only included thresholds through 3000 Hz, it is impossible to rule out a change in hearing sensitivity during service in the high frequencies, where early noise-induced hearing loss normally starts. The examiner opined that military acoustic trauma cannot be ruled out as a contributing factor to the current hearing loss and tinnitus. The Board finds that the Veteran has made a credible statement that hearing loss symptoms have been continuous since service. The VA examiner indicated that the current hearing loss could be due to noise exposure in service and the record indicates that there was noise exposure in service. The Board finds the Veteran's assertions of the onset of hearing loss during service and his reports that he has had hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current diagnoses and in connection with the VA examiners inability to rule out acoustic trauma as a contributing factor to the Veteran's current hearing loss, are sufficient to place in equipoise the question of whether the current bilateral hearing loss disorder was incurred in service and is etiologically related to the noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As to the Veteran's tinnitus disability, the Veteran contends that he has suffered from tinnitus since service. The December 2010 VA examiner stated that the Veteran reported an onset on tinnitus sometime in the 1970s. The examiner noted that the tinnitus was as likely as not a symptom associated with the Veteran's current hearing loss. As noted above, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a); see Allen, 7 Vet. App. at 448. The evidence shows that a current disability of tinnitus exists. The probative medical evidence of record demonstrates that tinnitus was proximately caused by the Veteran's hearing loss, which the Board has found to be service-connected. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for tinnitus on a secondary basis is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs