Citation Nr: 1339092 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-21 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife, L.B. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A hearing before the undersigned Veterans Law Judge was held at the RO in November 2011. A transcript of the hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss is causally related to noise exposure during active service. 2. Resolving all reasonable doubt in the Veteran's favor, tinnitus is causally related to noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103(A), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103(A), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. 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 VCAA and the implementing regulations. II. Merits of the Claims The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus as a result of acoustic trauma he sustained in active duty service. Governing Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In such instances, service connection for sensorineural hearing loss may be established based on a continuity of symptomatology from the time of manifestation. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a), such as sensorineural hearing loss). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 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 (2013). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Tinnitus has been variously defined. It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). See Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. See YT v. Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. See Kelly v. Brown, 7 Vet. App. 471, 472 (1995). "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin." See 59 Fed. Reg. 17,297 (April 12, 1994). To establish service connection, the Veteran is not obliged to show that his hearing loss or tinnitus was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Factual Background and Legal Analysis The Veteran maintains that service connection is warranted for hearing loss and tinnitus associated with acoustic trauma reportedly sustained during his military service. The Veteran testified at the November 2011 Board hearing that he was exposed to loud noise in Quartermaster Supply which required him to travel in a deuce and a half. He stated that while stationed in Korea his duties included driving to Seoul (approximately forty miles distance) once or twice a week to the quartermaster for pickups. He stated that the deuce and a half engine sounded like a high pitched whine and he was not provided with hearing protection. The Veteran denied any significant noise exposure to weapons fire as he only fired weapons once during training. In addition, the Veteran stated he lived in a Quonset hut with several other soldiers who were extremely loud by blaring music. Furthermore, the Veteran testified that for thirteen months was stationed near an airfield. The Veteran testified that he first experienced problems with his ears during the winter of 1966. The symptoms included constant ringing. Following service, he was not in any employment which exposed him to loud noise. According to the Veteran's military personnel records, his military occupational specialty (MOS) was a Quartermaster Supply Specialist. There is also evidence that the Veteran was cited as a rifle expert. The Veteran's in-service treatment records are absent of any complaints, treatment, or diagnosis of hearing loss, tinnitus, or any other ear problems. The July 1967 Report of Medical History at separation reveals the Veteran denied hearing loss. An audiological examination conducted in July 1967 reveals the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 - 5 LEFT 10 5 0 - 0 According to the post-service treatment records, the Veteran was diagnosed in August 2007 with normal to severe sensorineural hearing loss in the right ear with poor discrimination, and normal to mild high frequency sensorineural hearing loss in the left ear. No etiological opinion was provided. The Veteran underwent a VA audiology consultation in November 2008 where the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 60 70 80 LEFT 5 5 10 50 45 Speech audiometry revealed speech recognition ability of 52 percent in the right ear and 96 percent in the left ear. The examiner found that the Veteran had progressive hearing loss primarily in the right ear. The testing revealed moderate to severe mid to high-frequency sensorineural hearing loss in the right ear and mild to moderate high-frequency sensorineural hearing loss in the left ear. The word recognition scores were poor for the right ear and excellent for the left ear. No etiological opinion was provided. Finally, according to a May 2010 private audiological examination by Dr. G.W., the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 60 70 85 LEFT 15 15 20 55 40 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 88 percent in the left ear. The Veteran was diagnosed with high-frequency sensorineural hearing loss and tinnitus. Dr. G.W. acknowledged the subjective factors of the Veteran's reports that he had difficulty hearing and understanding conversational speech, and that his ears "ring" constantly. Dr. G.W. noted the objective factors that both puretone audiometry and word recognition scores demonstrated bilateral hearing loss according to the VA guidelines and that tinnitus was a common symptom of acoustic trauma and noise induced hearing loss. Significantly, Dr. G.W. opined "[i]t is at least as likely as not that both the [V]eteran's hearing loss and persistent bilateral tinnitus are related to his duties in the military. He worked in the motorpool around an airstrip and was exposed to various engine noises. It is not possible to determine if [the Veteran] experienced acoustic trauma but he was exposed to high noise levels. Noise exposure is a leading cause of [sensorineural] hearing loss and often causes tinnitus." The Board acknowledges that the post-service treatment records reflect bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385. The Veteran has repeatedly asserted that he suffers from ringing in the ears. In this case, the Board observes that tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board finds credible the Veteran's report of currently having tinnitus. In light of the foregoing, the Board finds that the Veteran currently has hearing loss and a tinnitus disability. In addition, the Board acknowledges the Veteran's report of being exposed to acoustic trauma in service (i.e. exposure to engines noises) to be credible given his consistent statements of noise exposure and his MOS. In giving due consideration to the places, types, and circumstances of his service, noise exposure is conceded. 38 U.S.C.A. § 1154(a). Service incurrence of an acoustic trauma injury has been demonstrated. The Board also finds that the crucial nexus between the Veteran's current bilateral hearing loss and tinnitus and his in-service noise exposure has been established to substantiate his claims of service connection as evidence by Dr. G.W.'s May 2010 report. Furthermore, the Veteran testified under oath before the Board that he experienced a lot of ringing in the ears during service and noticed decreased hearing following service. He has consistently maintained this position since then. The Board finds his assertions concerning in-service noise exposure, symptoms of hearing loss and tinnitus, and the continuity of such symptomatology since service to be credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). In view of the totality of the evidence, including the recognition of in-service noise exposure, current findings of bilateral hearing loss and tinnitus, the credible lay assertions of record, and the positive nexus opinion the Board finds that bilateral hearing loss and tinnitus are causally related to noise exposure during active service. Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs