Citation Nr: 1338428 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-18 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA and Veterans Benefits Management System electronic claims files does not reveal additional evidence pertinent to this appeal. FINDINGS OF FACT 1. At the time of the Veteran's February 1966 enlistment examination, bilateral hearing loss was noted. 2. Resolving all doubt in the Veteran's favor, pre-existing bilateral hearing loss increased in severity during service beyond the natural progression of the disease. 3. Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to noise exposure during active military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was aggravated in service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2013). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for bilateral hearing loss and tinnitus herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran served on active duty from February 1966 to November 1968 with service in the Republic of Vietnam. He contends that he was exposed to acoustic trauma during service and such aggravated his pre-existing bilateral hearing loss and caused his tinnitus. A February 1966 enlistment physical examination report contained the results of an audiogram showing the following puretone thresholds: Hertz 500 1000 2000 3000 4000 Right 0 0 0 - 50 Left 0 0 0 - 40 However, service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Veteran's February 1966 audiogram converted from ASA to ISO units reveals the following puretone thresholds: Hertz 500 1000 2000 3000 4000 Right 15 10 10 - 55 Left 15 10 10 - 45 As bilateral hearing loss was noted at the time of the Veteran's entrance to military service, such pre-existed service. Therefore, with regard to this issue, he may only bring a claim of service connection based on aggravation rather than incurrence. The remainder of the Veteran's service treatment records are negative for any complaints, treatment, or diagnoses pertaining to hearing difficulty and/or tinnitus. No testing was noted on a November 1968 discharge physical examination. However, the Veteran credibly reported, and service personnel records confirmed, that he performed duties in a combat theater in Vietnam clearing land areas and conducting demolition. He reported that he was exposed to noise in training and combat from artillery, explosives, and small arms fire. The Veteran worked after service in industrial facilities, a boat rental business, and in retail store and reported some noise exposure from power tools and recreational hunting. Therefore, the Board finds that the Veteran was exposed high levels of noise during and after service. Post-service, there are no records dated between 1968 and 1983; however, there is a record of thirteen audiometric tests conducted by the Veteran's civilian employer from 1983 to 2002 that show further deterioration of his hearing acuity. In September 2009, a VA audiologist reviewed the record and performed additional testing. Bilateral hearing loss for VA purposes was shown on audiometric testing. The audiologist concluded that, without an audiometric test at the end of military service, it was not possible to provide an opinion whether the Veteran's hearing loss noted at entry into service was aggravated beyond the normal progression of the disability as a result of military noise exposure without resort to speculation. The audiologist quoted a finding in a 2005 report by the Institutes of Medicine (IOM), Noise and Military Service: Implications for Hearing Loss and Tinnitus. The IOM committee noted, "[t]he evidence is sufficient to conclude that, in the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service" (emphasis added). Relevant to the Veteran's tinnitus, the September 2009 VA audiologist noted that the Veteran reported bilateral tinnitus, which he dated the onset as 20 to 25 years previously (mid-1980's to late 1980's), but could not recall any circumstances surrounding the onset of the head noise. He did not report tinnitus while on active duty or following acoustic events such as firing a shotgun. The examiner opined that it was less likely as not that the Veteran's tinnitus is a consequent of acoustic trauma during military service. In support of such opinion, the examiner noted that the Veteran had the onset of tinnitus in the 1980's after starting work at 3M. The onset was estimated as 20 to 25 years before the current date, which would place the onset between 1984 and 1989. The examiner noted that such weakly correlates with the first significant threshold shift, which was documented in 1986. Based on the Veteran's reported history, the examiner concluded that it appeared more likely as not that the onset of tinnitus was due to changes in hearing from post-service occupational and recreational noise exposure and not exposures during military service. Generally, when a medical opinion cannot be provided without speculation, the opinion may not be given probative weight. However, the audiologist did explain his view that the state of medical research and the evidence in this case was insufficient to form an opinion. However, there are no other opinions of record, and the Board must apply a standard lower than the "certainty" cited by the IOM committee. Therefore, the Board sought another opinion through the Veterans Health Administration (VHA). In October 2013, a VHA audiologist reviewed the claims file, acknowledged the noise exposure during and after service, and explained the physiology of damage to the structure of the inner ear caused by impulse or continuous sounds. The audiologist noted the presence of moderate hearing loss on enlistment and more severe hearing loss on the first examination after service in 1983. The audiologist concluded that the Veteran's pre-existing hearing loss was likely aggravated by noise exposure during service in Vietnam and was not likely the normal progression of the disorder. He concluded that post-service exposure also likely contributed to the current level of severity. Regarding tinnitus, the audiologist noted the Veteran's report that he did experience tinnitus after a fire fight or use of explosives but did not report it because all his fellow soldiers had the same experience. The audiologist noted that this was common because reports of ringing in the ears are not often made when everyone has it. The audiologist concluded that Veteran's current tinnitus was in part caused by noise exposure because it is consistent and often concurrent with high frequency hearing loss. Therefore, in resolving all doubt in favor of the Veteran, the Board finds that his pre-existing bilateral hearing loss increased in severity during service beyond the natural progression of the disease and his tinnitus is etiologically related to noise exposure during active military service. Consequently, service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert, supra. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs