Citation Nr: 1333898 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-17 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This matter was previously before the Board in February 2011 and more recently in April 2013. In both instances, the issues of bilateral hearing loss and tinnitus were remanded for further evidentiary development, to include submission of additional medical evidence. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has current diagnoses of bilateral hearing loss and tinnitus. 2. The Veteran was exposed to hazardous noise in service. 3. Symptoms of bilateral hearing loss have been continuous since service separation. 4. The Veteran's current tinnitus disability was caused by hazardous noise exposure in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1137, 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. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claims of service connection for hearing loss and tinnitus have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Merits of the Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, bilateral sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); tinnitus is not. Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for bilateral hearing loss. In addition, service connection for sensorineural hearing loss will rebuttably be presumed if it manifests to a compensable degree within the initial post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. at 506. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Legal Analysis The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus due to military noise exposure. He asserts that he was exposed to the sound of rocket attacks and combat fire while performing his duties as a cook for Marine Brigade Squadron 36 during his tour of duty in Vietnam. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability for VA purposes. In March 2012, the Veteran underwent a VA hearing examination. Pure tone thresholds, in decibels (dB), were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 25 25 30 30 50 LEFT 25 25 30 30 50 There is no indication that these audiometric results are unreliable or otherwise inadequate. Thus, the evidence above sufficiently establishes a current bilateral hearing loss disability, as the pure tone thresholds at 4000 Hz - in both the right and left ears - are greater than 40 dB. See 38 C.F.R. § 3.385 ("Disability due to impaired hearing"). Moreover, the Veteran reported current bilateral tinnitus at this time. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran's self-diagnosis was clinically acknowledged by the VA examiner. As both the Veteran and the VA examiner are competent to diagnosis tinnitus, and there is no evidence disputing the diagnosis, the Board finds that the Veteran has a current tinnitus disability. Additionally, the Board finds that the Veteran was exposed to hazardous military noise (i.e., suffered acoustic trauma) during service. The Veteran was awarded the Vietnam Campaign Medal and military personnel records confirm service in the Republic of Vietnam from June 1967 to June 1968. Moreover, by an RO rating decision issued in April 2012, the Veteran was service-connected for posttraumatic stress disorder (PTSD) on the basis of combat experience. As noted above, the Veteran attributes his current bilateral hearing loss and tinnitus to noise exposure related to rocket attacks and combat fire during service in Vietnam. The Veteran's competent lay account of having been exposed to these noises is consistent with the circumstances, conditions, and hardships of his service and is, therefore, credible. See 38 U.S.C.A. § 1154(b). After a careful review of the evidence, the Board finds that the weight of the lay and medical evidence is in equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus disabilities were caused by exposure to hazardous military noise during service. Service treatment records do not contain any complaints, symptoms, diagnoses or treatment attributed to hearing loss or tinnitus. While there are treatment notes for an ear ache on March 30, 1967 and a follow-up visit on April 6, 1967, both records pre-date the Veteran's service in Vietnam and do not mention hearing loss or tinnitus. The impression was otitis media, including a perforation. A scar in the right ear was observed during the follow-up visit. The August 1969 service separation examination contains a normal clinical evaluation of the ears. The service separation exam also includes a whispered voice test indicating hearing with normal limits, although the Board acknowledges that "whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur." VBA Training Letter 10-12. In consideration of all the aforementioned evidence, the Board observes that service treatment records weigh against a finding that either hearing loss or tinnitus began in service. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The first post-service complaints of hearing loss and tinnitus are found on the Veteran's April 2004 VA Form 21-526. The Veteran did not provide a specific date for when he incurred either disability and instead listed that all 27 injuries and/or diseases claimed at that time began while on active duty. No additional details pertaining to either hearing loss or tinnitus were provided on the form, and no medical evidence pre-dating April 2004 has been submitted by the Veteran. Thus, the Board finds the absence of hearing loss and tinnitus complaints between April 2004 and service separation in August 1969 weighs against finding that hearing loss and/or tinnitus symptoms have been present since the Veteran's active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred during the active military service, which resulted in any chronic or persistent disorder). The first post-service medical evidence of a hearing disability is found in a March 2006 private hearing examination report from Kaiser Permanente. Pure tone thresholds, in decibels (dB), were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 20 25 20 10 25 LEFT 25 30 20 20 40 These audiometric results indicate hearing loss for VA purposes in the Veteran's left ear, but not the right ear, based on a pure tone threshold of 40 dB at 4000 Hz. 38 C.F.R. § 3.385. Additionally, the audiologist noted that the Veteran complained of bilateral tinnitus during the examination. The audiologist provided no opinion regarding the etiology of the hearing loss in the left ear or tinnitus, however, the report indicates that the Veteran related a history of noise exposure in Vietnam. This history, reported for treatment purposes at a non-VA facility, bolsters the Veteran's credibility by demonstrating consistency with other statements and provides probative evidence for determining the onset date of the hearing loss and tinnitus disabilities. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). In June 2011, the Veteran underwent an audiology consultation at a VA Medical Center. During the consultation, the Veteran described "progressive hearing difficulties" and expressed a "plugged/muffled sensation to his ears." The Veteran reported a history of recurring ear infection for which he received occasional private medical treatment and for which he self-medicated during periods without health insurance. No audiological data was recorded during the examination; however, the Veteran explained that both hearing difficulty and tinnitus have been present since service. As discussed above, the Veteran was seen for a VA audiological examination in March 2012. Audiometric data confirmed the presence of a hearing disability for VA purposes, and tinnitus was clinically acknowledged by the examiner. The audiologist reviewed the Veteran's claims file, including service treatment records, and made specific note of the probative evidence considered when reaching an opinion about the Veteran's hearing loss and tinnitus disabilities. Specifically, the audiologist considered the Veteran's July 1966 enlistment examination, the service in Vietnam with a Marine rifle platoon, the August 1969 separation examination, the aforementioned treatment notes for an ear ache in March and April 1967, the history of chronic ear infection, the Veteran's lay statements, and post-service employment and recreational activities. Additionally, the audiologist cited medical literature to state that, "essentially veterans and non-veterans were likely to have hearing loss and the degree of hearing loss is likely to increases or worsens [sic] with age." The audiologist concluded that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. Similarly, the audiologist opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In an addendum medical opinion issued in August 2012, the previously discussed VA audiologist confirmed the findings from the March 2012 examination while expanding upon the rationale. Significantly, the audiologist highlighted the difficulty of attributing the Veteran's current hearing disabilities solely to active service "without considering other factors which affects [sic] hearing loss such as aging, various health issues (i.e. history of ear infections and treatments) and history of noise exposure from occupational and recreational activities 43 years after his military service." An August 2013 Disability Benefits Questionnaire completed by the same audiologist shows that the Veteran's file was reviewed a third time following the Board's April 2013 remand for additional evidentiary development. Upon that review, which included the results of the May 2006 Kaiser Permanente evaluation, the examiner related tinnitus to the Veteran's history of recurring ear infection. Given the audiologist's comprehensive review of the Veteran's claims files and detailed rationale, the Board assigns probative value to the March 2012 VA audiology examination report, the August 2012 addendum, and the August 2013 review, all of which support finding that the Veteran's hearing loss and tinnitus disabilities are not related to service. In sum, to support a finding that the Veteran's current hearing loss and tinnitus are related to active service, the probative evidence before the Board includes the Veteran's statements from the April 2004 VA Form 21-526 and the medical histories provided during the May 2006 Kaiser Permanente hearing evaluation, June 2011 VAMC audiology consultation, and the March 2012 VA audiological examination. Throughout these statements, the Veteran has provided competent, credible, and consistent statements that indicate an onset of hearing loss and tinnitus during service. The Veteran was not provided with a reliable hearing test upon separation in August 1969. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (holding that the absence of a hearing loss disability in service does not preclude service connection for a hearing loss disability). In contrast, the March 2012 VA audiological examination, supported by sound rationale and reviewed on two later occasions, supports finding that the Veteran's current hearing loss and tinnitus disabilities are not related to military noise exposure during active service. The VA audiologist determined that these disabilities could not be related to service because of other possible contributing factors including chronic ear infection and aging, in addition to the absence of treatment records between 2006 and service separation in 1969. Here, the Board relies on the Veteran's probative statements to provide competent evidence linking the Veteran's current hearing loss and tinnitus disabilities to service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). The Veteran has consistently maintained that he began experiencing symptoms of these disabilities in service and that these symptoms have been continuous since service. See Layno, 6 Vet. App. at 469-70 (lay evidence is competent to establish features or symptoms of injury or illness). He received the Vietnam Campaign Medal and has provided credible accounts of military noise exposure in Vietnam. While the Board considers that the Veteran did not seek treatment for these disabilities until many years after service, the Board also resolves reasonable doubt in favor of the Veteran and finds that the Veteran has had continuous symptoms of hearing loss since service and that service connection is presumed. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b); Walker, 708 F.3d at 1338-40. Similarly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's tinnitus disability is a result of in-service noise exposure and that service connection, based on a direct theory of entitlement, is warranted. See 38 C.F.R. 38 U.S.C.A. § 5107(b); §§ 3.102, 3.303(d). ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs