Citation Nr: 1337840 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-10 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1968. This matter is on appeal from the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In a March 2009 substantive appeal, via a VA Form 9, the Veteran perfected his appeal for the issues listed on the title page. In January 2011 and June 2012 decisions, the Board remanded these issues for additional development and adjudicative action. The case has been returned to the Board for further appellate review. In July 2012, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Philadelphia, Pennsylvania. A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran was exposed to loud noise (acoustic trauma) to both ears while in service. 3. The Veteran's current diagnoses of bilateral hearing loss disability for VA purposes and tinnitus are related to the in-service noise exposure. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 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 all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 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 Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Other organic diseases of the nervous system are listed as a "chronic disease" and includes sensorineural hearing loss. See M21-1MR, Part III.iv.4.B.12.a; see also Cromley v. Brown, 7 Vet. App. 376, 378 (1995). Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. The Veteran contends that service connection is warranted for his bilateral hearing loss and tinnitus due to noise exposure while aboard the USS Eversole during active service. The Veteran currently has a diagnosed bilateral hearing loss disability for VA purposes. Specifically, March 2011 VA audiological examination results revealed 65 decibels at the 3000 and 4000 Hertz ranges in the right ear, 55 decibels at the 3000 Hertz range and 65 decibels at the 4000 Hertz range in the left ear, and Maryland CNC (controlled speech discrimination) test results of 90 percent in the right ear and 88 percent in the left ear. See 38 C.F.R. § 3.385. With regard to a current disability of tinnitus, the United States Court of Appeals for Veterans Claims (Court) determined that tinnitus is the type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). 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. See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). Based on review of all the lay and medical evidence of record, the Veteran also has a current disability of tinnitus. On the December 2003 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, he asserted "the ringing in [his] ears seems to be getting worse." Pursuant to VA outpatient treatment sessions, an October 2005 record notes the Veteran's complaint and assessment of having tinnitus, and January 2008 and February 2008 records document his reported constant tinnitus in the right ear for approximately seven years. Tinnitus is listed among the Veteran's active problem list from July 2005 to October 2009. At the March 2011 VA audiological examination, the Veteran reported his tinnitus is recurrent, although occurs every day, sometimes may last all day or go away for a time and then come back during the day, and began while in Vietnam. Most recently, at the July 2012 Board hearing, he testified to first noticing the ringing in his ears during service. The ringing was intermittent in the beginning and now is constant in the right ear and the left ear is not quite as bad. Next, the Board finds that the Veteran is shown to have been exposed to loud noise (acoustic trauma) to both ears in service. The Board acknowledges that service treatment records are silent as to any complaints, treatment, or diagnoses of hearing impairment and bilateral unimpaired hearing (15/15) was demonstrated based on whisper tests in January 1967, December 1967 and December 1968. Nevertheless, in multiple statements pursuant to the claims on appeal, the Veteran asserts noise exposure while aboard the USS Eversole during active service, and service personnel records document his service aboard the USS Eversole in 1968. Pursuant to VA outpatient treatment sessions in January 2008 and February 2008, he reported one year of military noise exposure in the Navy, to include from the firing range. The ship had some exposure to 3 inch guns, and he did not wear ear protection. In the May 2010 VA Form 646, the Veteran's representative also asserted the Veteran did not have hearing protection during service for such events as pneumatic hammers, helicopter operations, and gun fire while topside, and engineering machinery below decks for basic firefighting drills and exercise. In a February 2011 VA Form 21-4138, the Veteran asserted 3 inch guns were fired on a daily basis while he was assigned to the signal bridge aboard the USS Eversole. At the March 2011 VA audiological examination, the Veteran also reported he spent at least two months in Vietnam with daily shore bombardments including gunfire, artillery, and large cannons. The noise exposure lasted reportedly six to eight hours a day, seven days a week, and he did not wear ear protection. At the July 2012 Board hearing, the Veteran reiterated that while about the USS Eversole for approximately six months, he was exposed to shore bombardments off to Vietnam and did not wear any ear protection. The guns fired about every 30 seconds and lasted for about 20 minutes to 1 hour. While performing his duties, he was located on the roof of the ship near the guns. The remaining question for consideration is whether the Veteran's current disabilities of bilateral hearing loss and tinnitus resulted from his in-service noise exposure. An October 2005 VA outpatient treatment record reveals a treating physician's opinion that "[t]his loss has the characteristics of a noise-inducted hearing loss. Considering the [Veteran's] account of noise trauma to aircraft and gunfire while in the military, it is plausible that the hearing loss was at least in part caused by the noise exposure [the Veteran] experienced while on active duty." At the March 2011 VA audiological examination, the examiner noted review of the claims file, took a detailed history from the Veteran, and recorded pertinent examination findings. Thereafter, the examiner opined that the Veteran's hearing loss and tinnitus are at least as likely as not caused by or a result of the Veteran's military noise exposure. It was explained that: The whispered test is insensitive to high-frequency hearing loss; therefore, if there had been a significant change in hearing of 15 (decibels) or if there was a hearing loss in the high frequencies, it would have most likely been undetected at the time of separation on the whispered voice test. The [Veteran's] current high-frequency hearing loss pattern is consistent with that of noise exposure and the [Veteran] provides a detailed history of noise exposure while in Vietnam. . . . The [claims] file corroborates the Veteran's service in the military around noise. Furthermore, the Veteran provided a detailed history of serving in Vietnam and reports the onset of tinnitus occurred while in Vietnam around cannon fire and gun fire. Again, the Veteran's audiologic configuration is consistent with noise exposure and the occurrence of tinnitus. The Board finds this opinion is adequate and of high probative value to show the Veteran's post-service diagnoses of bilateral hearing loss and tinnitus are related to his in-service noise exposure. The VA examiner provided a sufficiently clear and well-reasoned rationale based on objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005); Miller v. West 11 Vet. App. 345, 348 (1998) (holding that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Moreover, the medical opinion is based on an accurate factual history. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board acknowledges that the Veteran also reported post-service civilian noise exposure with use of hearing protection. Particularly, January 2008 and February 2008 VA outpatient treatment records note his 15 years of civilian noise exposure to bus engines and as a policeman in Philadelphia for 3 years and in Miami for 10 years. The Veteran informed the March 2011 VA examiner that he was a policeman for 10 years and, when he qualified on the range once a year, he wore headset noise protection. He also reported riding a motorcycle since the 1980s only in the summer time for recreational purposes approximately twice a month. At the July 2012 Board hearing, he reiterated wearing ear protection as a policeman when qualifying for weapons on a yearly basis. In light of such post-service civilian noise exposure, the March 2011 VA examiner considered such evidence in rendering the positive VA medical opinions. As a result, the Board finds the Veteran has current disabilities of bilateral hearing loss and tinnitus, exposure to loud noise (acoustic trauma) while in service, and these disabilities are related to such loud noise during active service. Therefore, resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss and tinnitus are related to service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Given the fully favorable decision discussed above for the issues on appeal, the Board finds that any concern regarding the timing or content of the Veterans Claims Assistance Act of 2000 (VCAA) notice provided to the Veteran is moot or represents harmless error. As to additional notice regarding the rating percentage and effective date to be assigned, the RO will address these matters in effectuating the awards. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs