Citation Nr: 1334202 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-08 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for chronic headaches, to include as due to left ear hearing loss and tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION 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). The Veteran, who is the appellant, served on active duty from July 1957 to July 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2011, the Veteran appeared at a Board hearing before an Acting Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in October 2009 and November 2010, when it was remanded for a hearing. After the August 2011 hearing but before a decision could be issued, the Acting Veterans Law Judge who presided at the hearing retired from the Board. The Veteran was then offered and accepted an opportunity to appear at another hearing and the matter was remanded again in February 2012 to provide him that opportunity. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In August 2013, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The issue of entitlement to service connection for chronic headaches is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Left ear hearing loss was incurred in service. 2. Tinnitus was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA applies to the instant claim. However, inasmuch as this decision grants the benefit sought on appeal, there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist failure as to these claims is harmless. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic disease, to include organic diseases of the nervous system such as hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology after discharge may be considered where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans' cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran served on active duty from 1957 to 1959. Unfortunately, none of his service treatment records, to include his entrance and separation examinations, are available because they are presumed to have been destroyed in the 1973 fire at the National Personnel Records Center. In addition, the Veteran's medical treatment records for several years after service separation are also unavailable. As a result, the Board will rely largely on the lay evidence of record. The Veteran reports that, prior to service entrance, he was seriously injured in a motor vehicle accident in 1950 which resulted in a significant loss of hearing in his left ear. As a result, the first three times he presented at the draft board, he was rejected due to diminished hearing acuity. However, on the fourth time he was accepted for service, despite a physician's statement advising that he should not be exposed to loud noises because of the risk of permanent hearing loss in his left ear. The Veteran has also stated that once in service, although he was assigned to administrative duties, he was required to complete his marksmanship qualifications in order to pass basic training. No hearing protection was provided and he was sent to the firing range multiple times before he qualified. On the firing range he was exposed to the loud noises of 50 to 100 guns all firing at once. He states that after the first few rounds, he could not hear anything at all in his left ear except constant ringing, and he suffered a severe headache. The Veteran has further stated that he has been unable to hear out of his left ear since his basic training. After service, he dealt with the problem by asking people to speak only to his right ear and by learning to read lips to improve his conversational abilities. He worked in an office setting and was not exposed to additional hazardous noise in either an occupational or recreational setting. He has provided both written statements and sworn testimony to this effect and to the fact that his hearing has never recovered from the effects of noise exposure in service. In addition, he has provided written statement from his wife and brother who have attested to his inability to hear out of his left ear since service and his continued complaints of ringing in his ears. A May 2006 VA audiology consultation shows that the Veteran has profound hearing loss in his left ear and mild sensorineural impaired hearing in his right ear. The provider noted the Veteran's history of a skull fracture and hearing loss due to a motor vehicle accident in 1950 with worsened hearing loss in service after exposure to the firing range. The provider also noted that the Veteran reported experiencing tinnitus continually since 1957. As noted, this case is unusual in that there is, and can be, little or no relevant medical evidence to address the questions of causation and nexus for the Veteran's current left ear hearing loss and tinnitus. However, the legal provisions which apply to this case are sufficient to allow for a full adjudication. The law provides that a Veteran will be presumed to have been in sound condition at the time of service entrance unless there is clear and unmistakable evidence that (a) there was a pre-existing disability; and (b) that any increase in disability in service was due to the natural progression of the disease or condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Normally, for a disability to be found to have pre-existed service, it should be noted at service entrance. In this case, though, the Veteran's service treatment records are unavailable, and the Board must consider the benefit-of-the-doubt rule. Therefore, as he was examined, accepted, and enrolled for service, and there is no evidence that any defects, infirmities or disorders were noted at the time of that examination, the presumption of soundness applies. See 38 C.F.R. § 1111. The Board acknowledges and accepts the statements by the Veteran and his family regarding the fact that he had some hearing loss in his left ear prior to service, and that his hearing in the left ear worsened as a result of the noise exposure in service. However, the presumption of soundness has two elements that must be considered: (a) the existence of clear and unmistakable evidence of a disability prior to service; and (b) the existence of clear and unmistakable evidence that any worsening in service was not due to the natural progression of the disability as opposed to the conditions of service. 38 U.S.C.A. §§ 1111, 1153. Thus, even in accepting the existence of hearing loss in the left ear at service entrance, as there is a lack of evidence to show that any such preexisting hearing loss was not aggravated by service beyond its natural progression, the second prong of the rebuttal fails and the presumption of soundness remains intact. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Notably, the circumstances of worsening, participation in marksmanship qualifications for graduation from basic training, is consistent with the nature and circumstances of the Veteran's duties in service. There is no clear and unmistakable evidence to suggest that the increase in the Veteran's disability was a natural progression of the pre-existing condition. The Veteran has provided a history of continuous symptoms of decreased hearing acuity in his left ear since service. Although he lacks the specialized training and experience to state that his hearing loss met the VA definition set forth in 38 C.F.R. § 3.385 at any time prior to 2005, he is considered competent and credible as to his symptomatology. The evidence shows that the Veteran has a profound hearing loss in his left ear. He has stated that his hearing loss has been of approximately the same severity since his noise exposure in service. The Board finds this statement to be both competent and credible. There is no evidence of record to contradict it. As such, affording the Veteran the benefit of the doubt, the Board finds that the current diagnosis of profound hearing loss and the evidence of continuity of symptomatology of profound difficulty hearing are sufficient to warrant a grant of service connection. 38 U.S.C.A. § 5107(b). Further, the Board notes that the Veteran has a diagnosis of tinnitus. He has stated that his tinnitus began with the noise exposure in service. The Court has held that tinnitus is the type of disability where a lay person is competent to provide evidence amounting to both a diagnosis and a nexus statement. The Veteran, as noted above, has been found to be both credible and competent with regard to the symptoms he experiences. As such, and again applying the benefit of the doubt, service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for left ear hearing loss is granted, subject to the laws and provisions governing the award of monetary benefits. Entitlement to service connection for tinnitus is granted, subject to the laws and provisions governing the award of monetary benefits. REMAND The Veteran also seeks service connection for chronic headaches which he asserts are due to his left ear hearing loss and the constant ringing in his ears. Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the low threshold of McLendon is met and a VA examination is necessary on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Afford the Veteran an appropriate VA examination to determine whether it is at least as likely as not that his current chronic headache disorder was caused by his left ear hearing loss and/or tinnitus, for which service connection has been granted herein. If the answer to this inquiry is negative, then the examiner should state whether it is at least as likely as not that his current chronic headache disorder has been aggravated (permanently worsened beyond its natural progression) by the service-connected hearing loss of the left ear or by his tinnitus. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is advised that the Board has found the Veteran's statements and those of his brother and his wife with respect to his symptoms and history to be competent and credible and that these statements should be accepted as such for purposes of rendering an opinion. The examiner is asked to provide the rationale for any opinion rendered. A copy of the claims file should be provided to the examiner for review. 2. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs