Citation Nr: 1336277	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  11-33 616	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Daniel Smith, Esq.


ATTORNEY FOR THE BOARD

W. Doernberg, Associate Counsel



INTRODUCTION

The Veteran served on active military duty from October 1970 to April 1972.  The Veteran also served on active duty for training in January and February 1970 as well as from July 1973 to August 1973.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA).

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal.

The Veteran submitted evidence after the most recent Supplement Statement of the Case.  Since the evidence was accompanied by a waiver of RO review, a remand is not necessary.


FINDINGS OF FACT

1. The evidence of record demonstrates that the Veteran's bilateral hearing loss symptoms continued since service.

2. The evidence of record demonstrates that the Veteran's tinnitus had onset during service.


CONCLUSIONS OF LAW

1. Bilateral hearing loss was incurred in active military service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013).

2. Tinnitus was incurred in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

With respect to the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus, because the claims are being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159 (2013).

Analysis

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  In order to establish service connection for a claimed disorder, the following must be shown: (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 or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Where there is a chronic disease shown 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).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may 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).

In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if they first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Although hearing loss is not shown in service or within one year of separation from service, service connection can be established if medical evidence shows that it is actually due to incidents during service.  Hensley  v. Brown, 5 Vet. App. 155, 159-60 (1993). 

Service Connection for Bilateral Hearing Loss

The Veteran asserts that his hearing loss is due to acoustic noise exposure as a Morse code intercept operator.

For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

The Veteran's service treatment records are negative for complaints of hearing loss or findings of hearing loss.  Beginning with an August 1969 whispered and spoken voice test performed in connection with a reserve enlistment examination and continuing until an August 1974 whisper test conducted during a triennial examination, the Veteran continuously demonstrated results of 15/15 in the bilateral ears.

In his June 2009 claim, the Veteran states that his hearing loss and tinnitus began in service.

In a June 2012 statement, the Veteran states that he had a pre-employment physical approximately 90 days after his discharge from active duty in 1972.  The Veteran reports that the examining physician advised him to have an audiological examination because her field testing indicated distinct hearing loss.  The Veteran states that he experienced a loss in hearing sensitivity and tinnitus during that period.  However, the Veteran explains that he did not know that the ringing in his ears was called tinnitus or that he should not have had difficulty hearing in crowds.  He states that he was "a proud 20 something young man."  The Veteran specifically describes that he contacted the HR offices of his employer from 1972, but the employer has no records.  This employer only retains records for 20 years, according to the Veteran.  The Veteran also states that he is not exposed to hazardous noise during other activities in his life. 

The Veteran submitted private audiology reports from 2009.  The April 2009 report described mild to moderate high frequency sensorineural hearing loss at 3,000 Hertz (Hz) and above.  The Veteran reported hearing loss since service and constant tinnitus.  Pure tone thresholds, in decibels, were as follows:

Hz
500 
1,000 
2,000
3,000
4,000
R
15
10
15
30
60
L
10
15
20
30
55

The September 2009 report described right mild to severe sensorineural hearing loss at 3,000 Hz and above and left moderate hearing loss at 3,000 Hz and above.  Pure tone thresholds, in decibels, were as follows:

Hz
500 
1,000 
2,000
3,000
4,000
R
15
10
15
35
70
L
15
20
15
45
45

The Veteran was afforded a June 2011 VA audiological examination.  The examiner reviewed the Veteran's service treatment records which demonstrated normal whisper and spoken voice tests from 1970 until 1974 as well as the 2009 audiograms.  The Veteran reported exposure to radio and Morse code noise ten hours per day during service and no civilian occupational noise exposure.  The examiner reported the Veteran's complaints of constant tinnitus, but described that he was unsure of the exact date of onset.  The examiner did not consider lay evidence of noise-exposed hearing loss in 1972.  Speech audiometry revealed speech recognition ability of 96 in the left ear and 94 in the right ear.  Pure tone thresholds, in decibels, were as follows:

Hz
500 
1,000 
2,000
3,000
4,000
Four Frequency Average
R
10
15
20
50
70
38.75
L
10
15
20
35
70
35

The examiner diagnosed normal to severe right sensorineural hearing loss and normal to profound left sensorineural hearing loss.  The examiner conceded hazardous exposure to noise.  However, there was no evidence of complaints of hearing loss during and after service.  Service treatment records showed normal whisper tests upon entrance and discharge.  The examiner stated that hazardous noise exposure has an immediate effect on hearing.  It does not have a delayed onset nor is it progressive or cumulative.  The examiner also found no evidence of chronicity or continuity of care because the Veteran did not report or seek treatment for hearing loss until 2009.  The examiner concluded that the Veteran's hearing loss was not as least as likely as not caused by or due to military noise exposure.

The Veteran submitted a July 1990 article entitled "Noise Exposure of Naval Communication Station Radio Operators: A Field Study."  The article concludes that Morse code operators face a significant probability of exposure to hazardous noise levels.

The evidence demonstrates that the Veteran's hearing loss is due to acoustic noise exposure.  First, the record establishes current disability.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  The VA examination reflects that the pure tone threshold is greater than 40 for 4,000 Hz in the left ear and for both 3,000 and 4,000 Hz in the right ear.  The April 2009 and September 2009 examinations demonstrate pure tone thresholds greater than 40 bilaterally for 4,000 Hz.  The September 2009 examination also demonstrates a pure tone threshold above 40 in the left ear at 3,000 Hz.  Thus, all of the tests demonstrate a hearing a current hearing loss for VA purposes.  38 C.F.R. § 3.385.

Second, the record demonstrates an in-service injury.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  The VA examiner conceded in-service hazardous noise exposure.  The Veteran also reported noise exposure ten hours per day.  The Veteran is competent to testify concerning the symptoms or facts that he observed.  38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board considers the Veteran's reports and finds these reports credible because they are consistent with the Veteran's military specialty as a radio operator.  The article submitted by the Veteran also supports a finding that the Veteran was exposed to hazardous noise during service.  A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships.  Sacks v. West, 11 Vet. App. 314, 316-17 (1998).  In this case, the article relates to the Veteran's specific job duties because he was a morse code intercept operator.  Its conclusion is also supported by the opinion of the VA examiner.  The article supports a finding of hazardous noise exposure.  Based upon all of the evidence, an in-service injury has also been established. 

Third, the evidence establishes a causal relationship between the acoustic trauma and the Veteran's current sensorineural hearing loss through continuity of symptomatology.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.
 
The Board acknowledges that the service medical records do not reflect any findings or histories of hearing loss and that the triennial examination reflects normal hearing.  The Board further acknowledges that a VA examiner has provided a negative opinion reportedly based on the Veteran's negative history as to a change in hearing and normal audiological findings.  The triennial hearing screening was limited to a whisper voice test, however.  It did not include an audiometric evaluation.  Whispered voice tests can be inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure.  See VA Training Letter 10-02; see also Smith v. Derwinski, 2 Vet. App. 137 (1992) (audiometric evaluation is a more precise indicator of hearing problems than whisper voice testing.).  The Board finds the normal whisper voice test and denial of a change in health are not particularly probative evidence of no diminution of hearing acuity at separation, and when viewed in conjunction with the examiner's failure to discuss the evidence suggestive of noise-exposed hearing loss in 1972, the Board finds the examiner's opinion is less probative evidence against service connection.

The Board gives weight to the Veteran's June 2009 statement that he experienced hearing loss beginning in service.  The Veteran is competent to report the symptoms he experienced during service.  Jandreau, 492 F.3d at 1377.  The Board also finds that the statement is credible because it is supported by later statements.  It is not clear that this hearing loss manifested to a compensable degree during service, however.  This statement alone does not support a finding of service connection through onset during service.  However, the statement supports that the Veteran experienced symptoms of hearing loss of some degree during service.  38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303, 3.304.  

The Board also gives weight to the Veteran's statement that a pre-employment physical approximately 90 days after active service demonstrated distinct hearing loss.  Lay evidence is competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis.  38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377.  The Board also finds that the Veteran's statement concerning this diagnosis is credible based upon the details he provided concerning the diagnosis as well as his credibly described attempts to obtain the records containing this diagnosis.  This diagnosis does not establish service connection on its own because it is not clear that the hearing loss became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  This diagnosis does, however, support a finding of continuity of symptomatology after discharge.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337-38 (Fed. Cir. 2013).

Further lay statements support the Veteran's assertions that his symptoms have continued since service.  The 2009 audiology reports record the Veteran's complaints of hearing loss since service.  In his June 2012 statement, the Veteran also states that since service, he had trouble hearing in crowds.  The Board finds that these statements are competent because a layperson is competent to report observable symptomatology of an injury or illness.  38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The Board also finds that these statements are credible because they are expressed with sufficient detail and consistency.

Based upon the weight of all of the evidence including the Veteran's lay statements, the private audiological examinations, and the VA examination, the Board finds that the Veteran has current compensable hearing loss, has incurred an in-service injury through acoustic trauma, and has experienced sufficient continuity of symptomatology.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  The Board finds that the evidence supports a finding of service connection for sensorineural hearing loss.  

Service Connection for Tinnitus

The weight of the evidence establishes service connection for tinnitus.  Id.  First, as previously discussed, the evidence establishes that the Veteran experienced acoustic trauma in service.  

Second, the Veteran has a current disability as demonstrated through his complaints of constant tinnitus.  The Veteran reported constant tinnitus to the VA examiner and in his private examinations.  A layperson is competent to diagnose tinnitus.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Board also finds that the Veteran's statements are credible because the statements are consistent with each other and with the Veteran's June 2012 statement.  Current disability has therefore been established.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.

Third, the evidence demonstrates a causal relationship between the in-service acoustic trauma and the Veteran's current disability because the tinnitus had onset during service.  Id.  The VA examiner opined that it was not as least as likely as not that the Veteran's tinnitus is caused by or due to military noise exposure because there was no evidence of complaints of hearing loss or tinnitus during and after service and because the Veteran did not report or seek treatment for hearing loss and tinnitus until 2009.  The Board gives less weight to this opinion because it is rebutted by the competent and credible statement of the Veteran that an examiner recorded hearing loss shortly after active service.  

The Board also gives weight to the Veteran's competent and credible statements concerning onset of tinnitus.  In his June 2009 claim, the Veteran states that he began to experience tinnitus in service.  In his June 2012 statement, the Veteran states that he was experiencing ringing in his ears around the time of discharge from active duty, but was unaware of how to classify these symptoms.  The Veteran is competent to report that he experienced tinnitus.  Charles, 16 Vet. App. at 374.  The Board also finds that the statements are credible because they were expressed in the context of a detailed and believable picture described by the Veteran including the period shortly after service.  

The evidence shows that the Veteran experienced tinnitus beginning during service and continues to experience tinnitus.  As the weight of the evidence reflects that the Veteran experienced noise trauma and tinnitus in service, the Veteran has current tinnitus, and there is a relationship between his tinnitus and his service, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303, 3.304.  



ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.



____________________________________________
 CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs