Citation Nr: 1333128	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  11-04 636	)	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

Veteran represented by:	Lawrence Kibler, Attorney-at-law


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel



INTRODUCTION

The Veteran served on active duty from February 1980 to February 1983 with a subsequent period of service in the Army National Guard.

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims.

The Veteran indicated on his undated substantive appeal (VA Form 9) that he desired at hearing before a Veterans Law Judge at the Board's Central Office in Washington D.C.  The Veteran's attorney subsequently indicated that the Veteran did not desire a hearing before the Board.  See the Appellate Brief dated May 2011 and the VA Form 21-4138 dated August 2011.  Consequently, the Board deems that the hearing request has been withdrawn.  See 38 C.F.R. § 20.702 (2013).

In December 2010, the Board requested translation of a number of documents from Spanish to English.  In a November 2011 Form 21-4138, however, the Veteran and his attorney denied having submitted any relevant documents that were in Spanish; and they certified that there are no documents relevant to the Veteran's claims that are in Spanish.  The Board notes that the translations reflect that the documents in question involved the Veteran's plan to reimburse an overpayment of VA education benefits he received.  They have no relevance to the claims currently pending before the Board.

In January 2012, the claims were remanded for further evidentiary development.  As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The VA Appeals Management Center (AMC) continued the previous denials in a June 2013 supplemental statement of the case (SSOC).  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

The January 2012 Board decision also remanded a claim of entitlement to service connection for anxiety disorder.  This claim was granted in a June 2013 rating decision in which the RO assigned a 70 percent disability rating, effective May 18, 2009.  There is no showing that the Veteran disagreed with that decision.  That matter has accordingly been resolved.  See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

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 evidence of record demonstrates that the Veteran's left ear hearing loss pre-existed his active military service.

2.  Resolving all doubt in the Veteran's favor, the left ear hearing loss was aggravated by his active military service.

3.  Resolving all doubt in the Veteran's favor, the right ear hearing loss is as likely as not related to his active duty service.

4.  Resolving all doubt in the Veteran's favor, the currently diagnosed tinnitus is as likely as not related to his active duty service.


CONCLUSIONS OF LAW

1.  Pre-existing left ear hearing loss was aggravated by the Veteran's active military service.  38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013).

2.  Right ear hearing loss was incurred in the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

3.  Tinnitus was incurred in the Veteran's active military service.  38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants.  The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claims for service connection for bilateral hearing loss and tinnitus, no further discussion of these VCAA requirements with regard to these issues is required.  Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992).

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303(b).  Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish the elements of service connection 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.  See Jandreau, 492 F.3d at 1377.

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. 
§ 3.306 (2013).  "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable."  See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013).  Rather, a pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013).

Here, the Veteran asserts that he has bilateral hearing loss and tinnitus that are due to in-service noise exposure.  See, e.g., the Veteran's statement dated May 2009.  Specifically, he maintains that he sustained acoustic trauma when he was routinely exposed to loud explosions from rockets and mortars while serving in an artillery unit during military service.  See id.  The Board has thoroughly reviewed the record and concludes that the evidence supports a finding that the Veteran's currently diagnosed bilateral hearing loss and tinnitus were incurred during his active duty service.

The Veteran's STRs are absent of any documentation of in-service complaints of, or treatment for, tinnitus.  With respect to hearing loss, the Veteran has asserted that he was accepted for enlistment despite an existing hearing loss.  There is a copy of an audiometric examination date-stamped in June 1979, that revealed the following:  




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
10
15
LEFT
15
5
5
40
45

An audiogram performed in March 1982 reflected the following pure tone thresholds, in decibels:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
40
35
LEFT
10
10
10
50
55

Similarly, a December 1982 audiogram documented the following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
10
10
25
20
LEFT
30
15
25
50
60

The evidence of record establishes that the Veteran had left ear hearing loss that pre-existed his military service.  Prior to his entry into active service in February 1980, the Veteran was afforded a June 1979 audiogram which documented high frequency hearing loss at 3000 to 4000 hertz in the left ear.  Moreover, as will be detailed below, this pre-existing left ear hearing loss has been identified in multiple VA medical opinions.  See the VA medical opinions dated October 2012, December 2012, and May 2013.  There is no entry or enlistment examination report, and the presumption of soundness does not apply.  Consequently, the relevant inquiry with respect to the left ear is whether the hearing loss was aggravated by, rather than incurred in, active service.  As to the claimed tinnitus and right ear hearing loss, the question remains whether these disabilities were incurred during the Veteran's active duty service.

As indicated above, the record demonstrates that the Veteran served on active duty from February 1980 to February 1983.  His military occupational specialty (MOS) was medical specialist.  As he was assigned to a field artillery unit, the potential for his exposure to hazardous levels of noise was conceded by the RO.  The Board concurs and finds that the Veteran's MOS was consistent with noise exposure from artillery fire during his active duty service.

As indicated above, the Veteran was discharged from active duty in February 1983 and subsequently served in the National Guard.  An August 1984 National Guard enlistment examination showed the following audiogram results:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
5
15
15
LEFT
20
5
5
40
50

 
An August 1989 enlistment examination for the Reserves noted the Veteran's three years of active duty as a medic in the infantry and field artillery and further noted that he was "exposed to noise."  Two audiograms were associated with this examination:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
30
20
LEFT
15
5
5
50
50





HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
0
20
15
LEFT
10
0
5
5
15

Additionally, a December 1993 Reserves examination revealed the following audiometric results:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
25
20
15
LEFT
15
15
20
25
15

A private audiogram administered in February 2002 documented the following:




HERTZ



500
1000
2000
3000
4000
RIGHT

10
15
65
50
LEFT

5
30
75
70

VA treatment records dated in June 2005 documented a diagnosis of tinnitus as well as moderately severe high frequency sensorineural hearing loss bilaterally.  A VA treatment record dated in February 2009 noted a current diagnosis of tinnitus.  A March 2009 VA treatment note documented the Veteran's report of military noise exposure including artillery noise without ear protection during his active duty service.  The VA treatment provider also indicated that "[a] hearing evaluation prior to entry into the Army showed a left high frequency hearing loss of unknown etiology."  Pure tone testing conducted in March 2009 revealed mild to moderately severe sensorineural hearing loss in the right ear and mild to severe sensorineural hearing loss in the left ear.  

In support of his claim, the Veteran submitted a lay statement from Mr. L.C.A. who indicated that that he served with the Veteran and that he was aware the Veteran "developed some ear problems while at this post due to recurrent trips to the field where tanks and artillery were in use."  See the statement of Mr. L.C.A. dated July 2009.  Additionally, the Veteran's spouse has asserted that the Veteran has complained of his ears ringing throughout their 20 year relationship.  See the statement of the Veteran's spouse dated May 2009.
The Veteran was initially afforded a VA examination in January 2010 as to his hearing loss and tinnitus claims.  The January 2010 VA examiner documented the Veteran's report of in-service noise exposure as well as post-service noise exposure during his current employment as an air-conditioning technician.  The examiner noted the Veteran's report of the onset of tinnitus during his military service which has become progressively worse.  The examiner also diagnosed bilateral sensorineural hearing loss.  However, as the Veteran's claims file was unavailable for review, the examiner was not able to opine as to the question of medical nexus.

A VA medical opinion was subsequently obtained in April 2010 at which time the examiner noted that the in-service March 1982 and December 1982 hearing examinations revealed mild high frequency loss in the right ear and moderate high frequency hearing loss in the left ear.  The examiner also reviewed the audiograms from the Veteran's National Guard and Reserves service and opined that the Veteran's hearing loss and tinnitus were "less likely as not (less than 50/50 probability) caused by or a result of tanks, weapons, artillery, and M-50 machine guns."  The examiner explained that "[t]he Veteran's separation physical on August 30, 1984 did show a mild to moderate high frequency loss in the left ear.  No enlistment physical hearing data was found in the c-file for comparison.  Hearing exam, dated December 1993, showed hearing was within normal limits for both ears, approximately 9 years after active duty."  He concluded, "[h]earing data at separation therefore suggest[s] a possible temporary threshold shift in the left ear.  Today's evaluation showed hearing loss more likely than not the effects of presbycusis and/or etiology, and less likely as not due to military noise exposure."

In a January 2011 VA treatment record, the Veteran's treatment provider noted that he had "significant noise exposure from artillery in the military."  The provider then diagnosed the Veteran with bilateral hearing loss and tinnitus, which are "likely due to noise exposure from [the] military."

Pursuant to the January 2012 Board Remand, the Veteran was afforded another VA examination in March 2012 at which time the VA examiner diagnosed the Veteran with tinnitus and bilateral sensorineural hearing loss.  However, he was unable to provide a medical opinion regarding etiology without resorting to speculation because the claims file was unavailable for review.

A VA medical opinion was therefore obtained in June 2012, at which time the VA reviewing audiologist concluded, "[i]t is the opinion of this examiner that the Veteran's hearing loss and tinnitus are at least as likely as not a result of his in-service noise exposure."  She explained that the c-file did not contain an enlistment examination for 1980 and "[t]herefore, shifts in hearing could have been sustained during service, since they are not documented."  She further noted that "[i]ndividuals that are exposed to high levels of noise, typically present with a hearing loss in the higher frequencies and report tinnitus.  Service record documents show Veteran served as an armor/artillery repairman, therefore highly probable acoustic trauma is conceded."  She also stated that the Veteran reported some noise exposure in his civilian employment.

As the June 2012 VA medical opinion did not address the June 1979 pre-enlistment audiogram as instructed in the Board's January 2012 Remand, the Veteran was subsequently afforded another VA medical opinion.  In this October 2012 medical opinion, the reviewing audiologist noted that "upon further review of the claims file a hearing examination dated June 30, 1979 showed a hearing loss at 3000 to 6000 hertz for the left ear."  She then reiterated her previous rationale for her positive medical nexus opinion, and further stated that "a significant change in hearing was noted from [the Veteran's] 1979 audiogram to his separation audiogram at 4000 Hertz for the left ear."  The examiner therefore concluded that "[i]t is the opinion of this examiner that the Veteran's hearing loss and tinnitus are at least as likely as not a result of his in-service noise exposure."

In contrast, the same VA examiner was then asked in December 2012 to specifically address the question of aggravation of the left ear hearing loss.  At that time, she determined that "[i]t is the opinion of this examiner that the Veteran's hearing loss in the left ear was not aggravated by his in-service noise exposure."  She again noted the high frequency left ear hearing loss documented in the June 1979 audiogram and then indicated that "[h]earing exam conducted on December 28, 1982 showed a mild loss at 500 Hertz and a moderate to moderately-severe loss from 3000 to 6000 Hertz in the left ear; a significant shift at 500 and 4000 Hertz noted from 1979 exam."  She further stated that the "[h]earing exam dated August 1984 showed a mild to moderate loss from 3000 to 6000 Hertz in the left ear.  No significant threshold shifts were noted from his 1979 exam.  Shifts in hearing on the 1982 exam were temporary threshold shifts since thresholds recorded in 1984 showed improvement."

The Veteran was afforded another VA medical opinion in May 2013 with respect to the right ear and tinnitus claims.  The VA examiner determined that "[i]t is the opinion of the examiner that it is LESS likely as not that right ear hearing loss and tinnitus is a result of active duty military service to include noise exposure."  She explained that "[t]he induction and separation audiograms indicate normal hearing right ear without threshold shift.  Service medical records and service treatment records were silent for hearing loss right ear and tinnitus complaints."  She indicated, "[t]here is history of pre-existing [high frequency hearing loss] left and then occupational noise history post active duty with bilateral hearing loss noted AFTER active duty service."  She then opined, "[t]he Institute of Medicine concluded that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed onset hearing loss.  The IOM did not rule out that delayed onset might exist, but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise induced hearing loss, there was no reasonable basis for delayed onset."

Accordingly, there is significant conflicting medical evidence of record concerning the questions of medical nexus and aggravation.  The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).

With respect to the question of whether the pre-existing left ear hearing loss was aggravated beyond the normal progression by the Veteran's military service, the Board recognizes that a negative opinion was obtained as to this question in December 2012.  Critically, a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013).  To this end, the December 2012 VA examiner's findings were ill-explained particularly in light of her prior positive finding as to the question of medical nexus in October 2012 including her determination that "a significant change in hearing was noted from [the Veteran's] 1979 audiogram to his separation audiogram at 4000 Hertz for the left ear."
Moreover, as to the right ear hearing loss and tinnitus, the Board finds that the June 2012, October 2012, and March 2013 medical opinions all appear to have been based upon thoughtful analyses of the Veteran's entire history and current medical condition.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion").  

Accordingly, the Board has weighed the probative evidence of record and finds that the evidence of record is at least in equipoise as to the matter of whether the Veteran's left ear hearing loss was aggravated by his military service.  The evidence is also in equipoise as to whether the right ear hearing loss and tinnitus are a result of the Veteran's military service.  The benefit of the doubt rule is therefore for application as to all three issues.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  The Board will resolve this reasonable doubt in the Veteran's favor and finds that the evidence supports the grant of service connection for tinnitus as well as hearing loss of the right and left ears.  See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Entitlement to service connection for bilateral hearing loss is allowed.

Entitlement to service connection for tinnitus is allowed.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs