Citation Nr: 1339930 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-12 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nobrega, Associate Counsel INTRODUCTION The Veteran had active service in the United States Air Force from January 1968 to June 1969; there are additional periods of inactive service in the New Mexico Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, has been reviewed in this case. FINDINGS OF FACT 1. The evidence of record shows that the Veteran suffers from tinnitus, and the Veteran's tinnitus is causally related to service. 2. The evidence of record shows that the Veteran suffers from a bilateral hearing loss disability, and the Veteran's bilateral hearing loss is causally related to service. CONCLUSIONS OF LAW 1. Service connection for tinnitus is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that service connection will be granted if it is shown that the Veteran experiences 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, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the current case, the Veteran asserted during an October 2010 VA examination that he has tinnitus which he alleges to have been present since he "got out of the military." The Veteran was separated from service in June 1969. With regard to the Veteran's testimony, the Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); See also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing 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. Id. Similarly, the Court has held that 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). Tinnitus is a ringing in the ears, and is uniquely identifiable to the Veteran through his senses. The Veteran is competent to report experiencing tinnitus, and this is confirmed in the September 2010 VA examination. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). The Veteran reported at an October 2010 VA audiology examination that he had been experiencing tinnitus since he got out of the military. The opinion as to a diagnosis of tinnitus, which, as something that can only be perceived by the senses of the Veteran, is, in fact, something on which the Veteran is competent to report. See Barr at 303. With respect to etiology, the Veteran has stated that the onset was directly after he got out of service. While he has attributed this to noise exposure, the Board notes that he is not competent to make an opinion on etiology, as that is something that is "medical in nature" (which would require medical expertise). See Jandreau at 492. The Veteran further alleges that the tinnitus is constant in nature. The October 2010 examiner noted that it was not at least as likely as not that the Veteran's tinnitus was related to acoustic trauma sustained in service. Essentially, the opinion was based on the fact that no assessment of tinnitus was present in the Veteran's service treatment records. This opinion is bare and conclusory, as the mere fact that symptoms were not documented in service is not, in itself, a sufficient supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304. In any event, regardless of what was documented in service, the Veteran has reported that he first experienced tinnitus around the time he left active service. As noted, he is competent to make such a diagnosis. Further, there is nothing in the record which would cast doubt on the Veteran's credibility. Additionally, 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) (West 2002); 38 C.F.R. § 3.102 (2013). Accordingly, in this case, there is competent and credible evidence indicating that current tinnitus first manifested in active service around the time of his separation from active duty. There is no evidence of any significant probative value against this contention, and thus, the claim is granted. The Veteran is also alleging that he has developed a bilateral hearing loss disability due to his active military service. Specifically, he has put forth the contention that the claimed disabilities are attributable to acoustic trauma allegedly experienced during his time of service. Criteria for service connection are outlined above. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2013). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2013). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. 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). The Veteran's contentions regarding noise exposure are supported by the information contained in his DD Form 214. The Veteran served as a weapons mechanic in the United States Air Force. The Veteran alleges that he was subjected to continual noise exposure while working on jets as well as also exposed to mortar and rocket fire. By the nature of his occupation during service, the Board concedes that the Veteran was exposed to acoustic trauma. However, the Veteran's service treatment records show no complaints of, or treatment for, hearing loss. Post-service records include an October 2010 VA examination. The Veteran reported to the examiner that he had acoustic trauma in service as noted above. With regard to post-service acoustic trauma the Veteran reported to the examiner that he has worked as a real estate appraiser. The Board notes that this post-service occupation would not subject him to significant acoustic trauma. An audilogical examination was provided to the Veteran and pure tone thresholds measured in the right ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz were 10, 10, 30, 45, and 55 decibels, respectively. Pure tone thresholds measured in the left ear at 500, 1,000, 2,000, 3,000, and 4,000 Hz were 10, 10, 30, 50, and 55 decibels, respectively. Speech recognition scores were 100 percent in both ears. Thus, the Veteran meets the criteria for a current hearing loss disability in both ears. The examination report rationale indicated moderate to moderately severe sensorineural hearing loss in both ears. It is noted that these findings confirm that the Veteran currently has a hearing loss disability within the meaning of 38 CFR §3.385. However, with regard to etiology, the October 2010 examiner stated that it was not at least as likely as not that the Veteran's bilateral hearing loss was related to acoustic trauma sustained in service. The Board notes that the examiner gave an inadequate rationale for denying a link between the Veteran's service and his bilateral hearing loss. The examiner only stated that "hearing was found to be well within normal limits at the time of enlistment and separation." The examiner continued, "there was not a significant threshold shift during this time [during service], therefore the current hearing loss or tinnitus is not caused by or a result of noise exposure from combat and working around jet engines." However, the examiner failed to mention that there was significant change in the Veteran's hearing threshold between an August 1966 audiological examination at the time of his enlistment to an audiological examination conducted in-service in December 1968. While within the normal range, the Veteran exhibited significantly reduced hearing capabilities in the December 1968 examination. Yet, the Veteran's last in-service audiological examination, conducted in January 1969, was markedly better than his December 1968 examination, and closer to the August 1966 results. The examiner did not offer an adequate rationale as to the shift in threshold nor adequately explain the cause of the Veteran's current bilateral hearing loss. The Board finds that there is evidence both for and against the Veteran's claim. On one hand, the Veteran is credible and the noise exposure he described appears consistent with the nature of his military duties. The Veteran also experienced a significant threshold shift between his 1966 audiological examination at the time he entered service to an audiological examination conducted in-service in December 1968. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, there is no significant threshold difference between entrance and exit examinations, or any complaints of hearing problems in service, and the VA examiner has opined that the Veteran's hearing loss is less likely than not caused by his military noise exposure. Regarding this evidence, the Board notes that the October 2010 VA examination was flawed as it provided an inadequate rationale as described above. Simply, the opinion is based solely on a lack of documentation in the Veteran's service treatment records and there are no associated rationales supporting the reasons as to why the examiner did not feel bilateral hearing loss was related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Having carefully and sympathetically weighed all the evidence of record, the Board must find that it is at least in equipoise regarding whether the Veteran's bilateral hearing loss had onset in service or were caused or aggravated by the Veteran's active service. Accordingly, the benefit of the doubt is resolved in the Veteran's favor and entitlement to service connection for bilateral hearing loss. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs