Citation Nr: 1332567 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-29 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from January 1984 to March 1990 and from May 1992 to September 1992. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned at an October 2011 videoconference hearing conducted between the RO and the Board Central Office. A transcript of that hearing is contained within the Veteran's Virtual VA file. FINDINGS OF FACT 1. Resolving reasonable doubt, the Veteran developed hearing loss in his left ear during active service, and suffered an increase in hearing loss in his right ear during service beyond its natural course. 2. Resolving reasonable doubt, the Veteran developed tinnitus in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107(b) (West 2002); 38 C.F.R. § 3.303, 3.304(b), 3.306(a), 3.385 (2013). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the Board has granted the complete benefits sought as to the claims adjudicated herein, there remains no reasonable possibility of prejudice to the Veteran as to these claims by any failure in the Board's duties to notify and assist the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Evidentiary Considerations Relevantly, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Although medical evidence may be required to support a claim in instances were specialized knowledge is required, lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (a lay persons is competent to testify to pain and visible flatness of the feet). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a disability 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 profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." ). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. III. Claims for Service Connection for Bilateral Hearing Loss and Tinnitus The Veteran contends, in effect, that noise exposures in service caused his bilateral hearing loss and tinnitus, and on that basis service connection for hearing loss and tinnitus is warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). However, service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). With a chronic disease shown 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. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For chronic diseases or disabilities listed within 38 C.F.R. § 3.309(a), continuity of symptoms following service may support service connection. 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Every veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). Only such disorders as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2010). If the presumption of soundness is not rebutted, the claim becomes one for service connection, meaning that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Where a pre-existing disease or injury is noted on the entrance examination, "[a] pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) . Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under Section 1153, unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Upon the Veteran's service enlistment examination in December 1983, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 20 45 LEFT 5 0 0 0 15 In an associated report of medical history the Veteran reported being hospitalized for an ear infection at the age of 15, in 1980. The examiner noted that this was for left otitis, and the condition was fully resolved. Upon periodic service examination in January 1990, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 25 50 LEFT 0 10 0 5 25 The examiner assessed moderate high frequency hearing loss in the left ear, "non-progressive." A February 1989 service occupational health examination report notes that the Veteran was among personnel "responsible for the trouble shooting, repair and replacement of aircraft fuel systems [...] in the B-52H and KC-135 aircrafts. They are also tasked with maintaining the KC-135A water injection system." The report goes on to note occupational environmental hazards and precautions taken, specifically with regard to hazards and precautions of respiration. Noise hazards were not mentioned. At his October 2011 hearing, the Veteran testified that in his first six years of service he worked at the flight line, and was constantly around loud noise. He added that exposures included engine noises in the course of duties as a fuel systems technician, troubleshooting aircraft on the flight line and bringing aircraft to the hangar for repairs. Aircraft worked on included large jet aircraft and helicopters. He added that while stationed in the Philippines his repair shop was 120 to 130 feet from the taxiway, and it was particularly loud at that location. He added that while he wore hearing protection, some work in confined spaces required that hearing protection headsets be removed. In any event, he contended that the noise exposures were significant even with the hearing protection. He testified that upon service separation he could tell that he had lost some hearing, because he had to ask people to repeat themselves. He additionally testified that he had ringing in his ears ever since his stationing in the Philippines. The Veteran testified his superiors in service told him that the ringing or hearing loss was just part of the job. He additionally testified when he saw a private physician following service and inquired about the hearing loss, he was told that it was something he simply had to get used to. Regarding the post-service interval, the Veteran testified that his various occupations included driving a truck, work for the Post Office, and work as a mechanic. The Veteran conceded that he was not completely unexposed to noise following service. The Veteran's service records substantially corroborate his assertions of in-service work and thus associated noise exposures. Additionally, there is no indication that the Veteran's narrative or assertions of past or current symptoms are not credible. Hence, the Veteran's credibility is accepted for purposes of the present adjudication. Caluza. The Veteran was afforded a VA examination in May 2009 addressing his claimed hearing loss and tinnitus. The examiner noted the following: At enlistment in Dec[ember] 1983, the audio showed a moderate to severe hearing loss in the right ear at 4 kHz - 6 kHz, and a moderate loss at 6 kHz in the left ear. At separation in 1990, there was a moderate to moderately severe hearing loss at 4 kHz - 6 kHz, and hearing was at the upper limits of normal at 4 kHz - 6 kHz in the left ear. The examiner also noted the Veteran's complaint of bilateral hearing loss since service and bilateral ringing in the ears constantly since service. The examiner recorded the Veteran's history of work on a flight line during the first six years of service. The Veteran reported that during his brief second service interval in 1992 he worked around heavy equipment with hearing protection not always available. The Veteran also reported work post service driving a truck, and leisure pursuits including hunting and target shooting occasionally with use of hearing protection. At the May 2009 examination, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 20 20 25 45 70 40 LEFT 10 20 30 70 90 52.5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear. Tympanogram revealed intact structures and acoustic reflexes. The examiner assessed mild to profound sensorineural hearing loss in the right ear, and moderate to severe sensorineural hearing loss in the left ear. Impacts on daily functioning were noted to include asking others to repeat themselves frequently. Despite review of the claims file records, the examiner concluded that she could not provide an etiology opinion related to service without resorting to speculation. The examiner explained that high frequency hearing loss was present upon enlistment in 1983 and remained stable during service up to his separation in 1990; his hearing loss had worsened since 1990; and there were no records of impacts of his second period of service on his hearing loss or tinnitus. The Board observes that while high frequency hearing loss in the range from 4000 to 6000 hertz was present upon both 1983 and 1990 examinations, a slight threshold shift is present in the right ear at 3000 and 4000 hertz, and in the left ear at 4000 hertz. This, coupled with the Veteran's documented in-service sources of noise exposure / acoustic trauma, and his credible accounts of worsening hearing, as he perceived it, upon separation from service, as well as tinnitus since service, together lend substantial support for the conclusion that the Veteran developed hearing loss and tinnitus from his significant aircraft noise exposures in service. Pursuant to Hensley, testing only reflected hearing loss in the right ear in December 1983 and thus on entry into service, and not in the left, while pursuant to Hensley hearing loss was present in both ears upon testing in January 1990. Thus, the presumption of soundness is applicable for the left ear but not the right for the Veteran's first period of service. 38 U.S.C.A. § 1111. In any event, the Board concludes that it is at least as likely as not that there was hearing loss manifested in the left ear, and hearing loss increase beyond its natural course in the right ear, during the Veteran's active duty period. The Board also concludes that it is at least as likely as not that the Veteran developed chronic tinnitus in service. The Veteran's hearing loss currently meets the disability criteria of 38 C.F.R. § 3.385 for both ears. Thus, affording the benefit of the doubt, service connection is warranted for both bilateral hearing loss and tinnitus. 38 U.S.C.A. §§ 1153, 5107(b); 38 C.F.R. §§ 3.303, 3.306(a); Gilbert. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs