Citation Nr: 1338708 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-22 146 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral sensorineural 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 H. Seesel, Counsel INTRODUCTION The Veteran had active service from January 1962 until December 1963. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2010 rating decision of the RO. After the issuance of the June 2012 Statement of the Case, two private physician statements were submitted in August 2012. These statements were accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The currently demonstrated bilateral hearing loss disability is shown as likely as not to be due to the exposure to excessive noise levels beginning during the Veteran's period of active service. 2. The currently demonstrated that tinnitus is shown as likely as not to be due to the exposure to excessive noise levels beginning during the Veteran's period of active service. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by tinnitus is due disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In the present case, the RO sent a notification letter to the Veteran dated in June 2010. 38 C.F.R. § 3.159. In this case, the record includes service treatment records, VA outpatient treatment records, private treatment records, the report of a VA examination and lay statements. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion as to VCAA is not required at this time. The Merits of the Claims The Veteran seeks service connection for hearing loss and tinnitus. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the evidence is at an approximate balance and the appeals will be allowed. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Several alternative paths to service connection exists for certain chronic diseases identified in 38 C.F.R. §3.309(a). Service connection may be awarded if a chronic disease, such as sensorineural hearing loss, manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a)."). If, however, a disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Hearing loss disability claims are governed by 38 C.F.R. § 3.385 which provides that hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. A hearing loss disability can also be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. Id. The Veteran was afforded a VA examination in September 2010. This examination demonstrated hearing acuity over 40 decibels in the 2000, 3000, 4000 thresholds of the left ear and in the 1000, 2000, 3000 and 4000 thresholds of the right ear. Thus, the Veteran clearly has a current disability in accordance with 38 C.F.R. § 3.385. The examiner also noted the Veteran's report of tinnitus. As the Veteran has current disabilities, the remaining questions are whether there is evidence of an inservice occurrence and whether there is medical evidence of a nexus or relationship between the current disability and the inservice disease or injury. The service treatment records do not reflect any complaints or findings referable to hearing loss or tinnitus. In fact, the November 1963 separation examination noted no abnormalities of the ears and reflected hearing within normal limits in all thresholds. The Veteran also denied a history of ear trouble or running ears on the November 1963 Report of Medical History. In the present case, the Veteran has alleged exposure to noise during service. The Veteran is competent to describe symptoms he has experienced. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Furthermore, the Board finds the Veteran's report of noise exposure to be credible as his description of symptoms has been consistent throughout the record and his DD Form 214 corroborates his military occupational specialty was a light weapons infantryman. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be evaluated by a showing of interest, bias, inconsistent statements, the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The final element is competent evidence of a nexus between the current hearing loss and tinnitus and the noise exposure in service. In this regard, the Veteran was afforded a VA examination in September 2010 to assess the nature and likely etiology of the claimed conditions. The examiner reviewed the claims file and considered the Veteran's subjective complaints. The Veteran reported the onset of his hearing loss and tinnitus as the 1960s. He described having noise exposure during service from heavy artillery, small weapons, and grenades and denied having any significant occupational or recreational noise exposure. The examiner concluded that the Veteran's hearing loss and tinnitus were less likely as not caused by the Veteran's noise exposure in service. The examiner explained that the Veteran had normal hearing at separation so the current loss was more likely a post-service occurrence. The examiner indicated that, as hearing was completely normal at separation, the tinnitus was also less likely due to military noise exposure. The Veteran also submitted several letters from private physicians. In June 2010 and June 2012 statements of J.D.H., D.O. indicated the Veteran had hearing loss and tinnitus likely due to exposure of loud sounds such as weapons fire. No rationale for the opinions was provided. An August 2012 statement of J.F.S., M.D. explained that the Veteran had been experiencing hearing loss for a number of years. The Veteran reported having in-service noise exposure from gunfire, artillery fire, and other explosives and indicated that he was not issued hearing protection at that time. Dr. S. concluded that, after evaluating the Veteran, it was evident that he suffered from profound sensorineural hearing loss and it was believed to be directly attributed to the noise exposure he incurred during his service. No rationale was provided. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to obtain a more definitive opinion with full rationale to reconcile the conflicting medical evidence. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Here, while there are several opinions for and against the claim, none are conclusive. The September 2010 VA examination concluded that it was less likely than not that hearing loss and tinnitus were related to noise during service but based its opinion entirely on the fact that the Veteran's hearing was normal at separation. In Hensley v. Brown, the Court explained that the failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection. 5 Vet. App. 155, 159-60 (1993). Furthermore, the examiner did not discuss the Veteran's credible reports of decreased hearing acuity and tinnitus during the 1960s. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). While the June 2010, June 2012 and August 2010 opinions related the hearing loss and tinnitus to service, none provided a rationale for this conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, however, the Board finds it significant that the Veteran has reported the onset of the hearing loss and tinnitus to be during service. In his initial claim, the Veteran reported the onset of both conditions as August 1962. During the VA examination, he also noted the date of onset to be in the 1960s. The Veteran is competent to describe symptoms such as decreased hearing and ringing of the ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds his report to be credible given the consistency of his assertions. Caluza, 7 Vet. App. at 511. Given the mixture of favorable and unfavorable medical opinions, and the Veteran's competent and credible reported history of his hearing loss and tinnitus having their onset during service and continuing since that time, the Board finds that this is a situation where the benefit of the doubt rule applies. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, in resolving the benefit of the doubt in the Veteran's favor, service connection for hearing loss and tinnitus is granted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs