Citation Nr: 1338623 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 13-05 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Service connection for hearing loss and for tinnitus was denied therein. The Veteran appealed these determinations. 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. 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). FINDINGS OF FACT Bilateral hearing loss is related to in-service noise exposure. Tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claims for service connection for bilateral hearing loss and tinnitus. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (2013). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303(b) (2013). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1337 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Once evidence is determined to be competent, the Board must then determine whether that competent evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). 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) (2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation 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) (2013). However, that does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an organic disease of the nervous system. 38 C.F.R. § 3.309(a) (2013). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Accordingly, the Veteran's claims of continuity of symptomatology have been considered and addressed. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, where hearing loss that is an organic disease of the nervous system manifested to a compensable degree within one year following separation from service, service connection shall be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Analysis No service treatment records regarding the Veteran have been obtained. All indications are that they were destroyed in a fire while in the possession of the National Personnel Records Center, a government agency. Efforts to replicate them, or at least pertinent portions, have been unsuccessful. Therefore, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the resolving reasonable doubt in favor of the Veteran. Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Because these records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation in mind. The Board still must evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran is competent to report noise exposure in service, and his service records, including his DD-214, show that he served in an infantryman regimen, with a military occupational specialty (MOS) of Field Artillery Crewman. Thus, the Board finds that the Veteran's reports of noise exposure are credible and consistent with the circumstances of his service, and the acoustic trauma is deemed to have occurred. See 38 U.S.C.A. § 1154 (a), (b) (West 2002); 38 C.F.R. § 3.304(d) (2013). VA treatment records have been submitted by the Veteran and obtained by VA. They show ongoing audiologcial treatment starting in June 2010. The Veteran underwent a VA medical examination in September 2010. He reported exposure to loud noise during service from weapons and artillery fire while not wearing ear protection. He also reported occasional post service exposure to loud noise from weapons fire during hunting while not wearing ear protection and from being called to the floor of the steel mill where he worked without ear protection for 20 out of 30 years. Finally, he reported hearing loss and tinnitus for about 30 years, since he was in his 40's. Bilateral hearing loss severe enough to be considered a disability by VA and tinnitus were diagnosed following review of the claims file, further interview and assessment of the Veteran. 38 C.F.R. § 3.385 (2013). The examiner, an audiologist, determined that an opinion regarding whether it is at least as likely as not that the Veteran's hearing loss and tinnitus are related to his service could not be made without resort to mere speculation. In rendering his opinion, he noted that the Veteran's service treatment records are not available, and that the Veteran had post service exposure to loud noise at work. The Board noted in its July 2013 remand, that it was unclear whether or not the evidence in its entirety was considered, notwithstanding the indication that the claims file was reviewed, because the rationale provided was not fully articulated. In this regard, there was no discussion of the Veteran's report that his hearing loss and tinnitus began about 30 years prior when he was in his 40's. Furthermore, his earlier September 2010 statement that the ringing in his ears developed during service was not discussed or even acknowledged. Neither was a June 2010 VA treatment record documenting his report of post-service exposure to loud noise for 5 years due to working for the Sheriff's department. Of further note is that in February 2013, following his September 2010 examination, the Veteran reported that the ringing in his ears began shortly after service. In accordance with the Board's July 2013 remand, the Veteran was afforded another VA examination in September 2013. The examiner diagnosed bilateral sensorineural hearing loss and tinnitus, and opined that the tinnitus was related to the Veteran's hearing loss. However, he opined that he could not provide an opinion regarding the etiology of the Veteran's bilateral hearing loss without resorting to speculation because there were no service treatment records in the claims file. The Board finds that the September 2013 examiner's opinion is also inadequate for rating purposes. In this regard, as was noted in the Board's previous remand, the Board finds the Veteran's reports of in-service noise exposure credible, and as such, noise exposure in service has already been conceded. Therefore, the fact that it cannot be definitively proven that the Veteran had hearing loss or tinnitus in service (given the lack of service treatment records) cannot be the basis for rendering a negative nexus opinion. The Board notes that the absence of service treatment records showing in-service evidence of hearing loss or tinnitus is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss and tinnitus. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d). The Board also notes that while the VA examiner attempted to explain why he could not provide the requested opinions without resort to speculation, he did not indicate whether there was other evidence or information that he could use to adequately form the opinions. It is unclear from the examiner's opinion whether he found it at least as likely as not that the Veteran's bilateral hearing loss and/or tinnitus were related to in-service noise exposure. The examiner was not required to state with certainty whether the Veteran's bilateral hearing loss and/or tinnitus were related to in-service noise exposure, although the opinion implies that he was under the impression that the opinion required such certainty. An examiner's reports that he or she cannot provide an opinion without resort to speculation, is inadequate unless the examiner provides a rationale for that statement and states whether there is additional evidence that would enable the necessary opinion to be provided. Jones v. Shinseki, 23 Vet. App. 382 (2012). Accordingly, the Board finds that the examiner's opinion weighs neither for nor against the claims. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Hearing loss and tinnitus are manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported in statements and on VA examination that he was exposed to noise from artillery fire during service. Therefore, the Board finds his reports credible. Furthermore, his reports of a continuity of hearing loss and tinnitus since service is competent evidence of a continuity of symptomatology. They provide a sufficient basis for establishing service connection. Davidson, Jandreau, Barr. He is competent to report the specifics of his injury, and his reports are supported by the findings that he has current bilateral hearing loss and tinnitus. There is evidence against the claim, inasmuch as the contemporaneous record does not document hearing loss or tinnitus for many years after active duty, and the September 2010 and September 2013 examiners provided opinions against the claim. However, as noted above, both opinions have been found to be inadequate for evaluation purposes. Therefore, the Board finds that the evidence is, in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claims are granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs