Citation Nr: 1340295 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-08 132 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from December 1951 to December 1954. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision in which the RO denied service connection for bilateral hearing loss and tinnitus. In March 2009, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2010. In March 2013, the Acting Chairman of the Board advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2013). In April 2013, the Board sought an expert medical opinion from the Veterans Health Administration (VHA). The first opinion obtained, dated in June 2013, was returned to the VHA examiner for clarification. An addendum opinion was received in July 2013. In September 2013, these opinions were provided to the Veteran with a 60-day period of time to provide additional evidence and/or argument. The Veteran has not responded. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and competent opinion evidence on the question of whether the Veteran's current bilateral hearing loss is etiologically related to in-service noise exposure is, at least, in relative equipoise. 4. The Veteran has credibly asserted that he experienced short-term tinnitus after noise exposure during service, and that it has been recurrent to the present. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claims for service connection on appeal, the Board finds that all notification and development action needed to fairly adjudicate the claims have been accomplished. II. Analysis The Veteran claims that he has bilateral hearing loss and tinnitus as a result of noise exposure during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection, hearing loss is considered a disability for VA purposes 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; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Notably, the Walker decision appeared to operate on the assumption that sensorineural hearing loss was not considered a "chronic" disease for purposes of 38 C.F.R. § 3.303(b). This case did not contain any discussion as to whether sensorineural hearing loss came within the definition of an organic disease of the nervous system which is listed as a chronic disease for purposes of 38 C.F.R. § 3.309(a). VA has a policy that sensorineural hearing loss is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010). See also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). As the Walker case did not expressly address this issue, the Board will deem sensorineural hearing loss as a "chronic" disease for purposes of this decision. VA has not, however, identified tinnitus as a "chronic" disease under 38 C.F.R. § 3.309(a), to include coming within the definition of an organic disease of the nervous system. Although tinnitus is not a chronic disease, listed in section 3.309(a), that is subject to service connection based upon a showing of continuity of symptomatology per Walker, as explained below, lay assertions as to the existence, and continuity of symptoms, of tinnitus, or ringing in the ears, is considered competent evidence of such. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, and affording the Veteran the benefit of the doubt on certain elements of each claim for service connection, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The Veteran served on active duty from December 1951 to December 1954 in the U.S. Coast Guard as a radioman. He has described wearing headsets at loud volumes for four hour shifts, and experiencing occasional, unexpected bursts of loud static or tone bursts that would cause ear pain. Reportedly, he also had been in close proximity to a duty station which would unexpectedly fire 5 inch guns. The Veteran also described general ship noise. He has reported experiencing diminished hearing since service separation. He has also reported short term tinnitus after exposure to loud sounds in the military, and that his tinnitus has been recurrent thereafter. Post service, the Veteran reported working as an air traffic controller for approximately 10 years, and working in management for another 22 years. Reportedly, he had some noise exposure traveling in planes to various airports. He also performed some hobby trap shooting for two years wherein he wore double hearing protection of plugs and muffs. The Veteran's service treatment records (STRs) only reflect measurement of his hearing acuity in whispered voice testing. The first available report of audiological evaluation, with audiometric testing results, is dated in June 2008. Additional audiometric testing was conducted by VA in December 2008; such testing revealed bilateral hearing loss per the standards of 38 C.F.R. § 3.385. In a June 2008 letter, clinical audiologist Richard C. Lind, M.A., provided opinion that the Veteran manifested a bilateral, moderately severe sensorineural hearing loss disability consistent with his age and noise exposure history. It was opined that it is at least as likely as not that the Veteran's hearing loss began with his in-service noise exposure. It was noted that the Veteran described occasional tinnitus in the past, but none currently. On the other hand, a December 2008 VA examiner initially stated that an opinion could not be provided without resort to speculation as the Veteran's STRs and claims folder were not available for review. Upon receipt of the claims file the VA examiner commented that the Veteran's audiogram configuration was consistent with noise exposure and presbycusis. The examiner also commented that the presence or absence of hearing loss in service could not be determined, as the Veteran was only provided whispered voice testing. The Veteran described short term tinnitus after exposure to loud sounds while in the military which occurred once or twice a month, and lasted seconds in duration. The examiner described the Veteran's ear ringing complaints as more consistent with transient ear noise rather than tinnitus. Based upon the above, the VA examiner concluded that the Veteran's hearing loss is less likely than not initiated by noise exposure in the military, and aggravated by occupational and recreational noise exposure and presbycusis. In a June 2013 VHA opinion, a VA otologist provided opinion that the Veteran's bilateral high frequency hearing loss with good discrimination scores demonstrated in 2008 was consistent with presbycusis and service-connected noise exposure, which included being a radio-operator and being adjacent to gunfire. In addendum opinion in July 2013, the VHA otologist opined that there was less than a 50 percent probability that the Veteran's tinnitus was service-connected , noting that tinnitus is a common disorder occurring in 20 percent of the population and 1/3 of those over 65 which made it impossible to connect the tinnitus symptom to his prior in-service noise exposure. Here, the audiometric testing results by VA in 2008 clearly indicate that the Veteran has current bilateral hearing loss to an extent recognized as a disability, pursuant to 38 C.F.R. § 3.385. The Veteran has asserted, and the VHA examiner has presumed, a current tinnitus disability. The remaining questions, however, is whether each disability is medically related to service. On the question in-service injury, here, the Board finds that the Veteran's allegations of in-service noise exposure are credible and consistent with the circumstances of his Coast Guard service. The Board has no reason to doubt the Veteran's description of loud headset noises and being adjacent to firing weapons. On the question of etiology of current hearing loss, the Board notes, as indicated above, that the current record includes conflicting opinions regarding whether the Veteran's current bilateral hearing loss is medically related to his in-service noise exposure. When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Additionally, the Board may consider the relative qualifications of one examiner over another. See Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board finds that the private, VA and VHA examiners are competent professionals who have each evaluated the Veteran, provided an opinion within his area of expertise, and gave some rationale for the opinions. All of these examiners have essentially provided an opinion based upon the same factual history provided by the Veteran, although the private examiner did not have review of the STRs. The lack of audiometric testing upon separation, however, significantly reduces the probative value of the STRs overall. On the other hand, the VA examiner provided no rationale for determining that the Veteran's hearing loss was aggravated by post-service noise exposure rather than military noise exposure. Overall, these competent but contrary opinions which directly address the etiology question are entitled to, essentially, equal probative weight. The opinion of the VHA otologist agrees with the private examiner assessment. As such, the Board finds that the evidence for and against the claim is relatively evenly balanced, or, in other words, in relative equipoise. Hence, the benefit of the doubt in resolving the issue shall be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. As such, the Board finds that, on this record, the criteria for service connection for hearing loss are met. On the question of etiology of tinnitus, the Board notes, as indicated above, that only the VHA examiner has provided an actual opinion. Pointing to a clinic record dated June 2008 (which provided the basis for the private examiner opinion on hearing loss), the VHA examiner noted that the Veteran reported "occ tinnitus in past - none now." The VHA examiner, citing statistics that tinnitus is a common symptom and present among one third of persons in the Veteran's age group, opined that there was less than a 50 percent probability that the Veteran's tinnitus was related to in-service noise exposure. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Notably, the VHA examiner did not specifically rule out the Veteran's in-service noise exposure as a cause for his tinnitus, or whether the Veteran's tinnitus may be secondary to his now service-connected sensorineural hearing loss. See, e.g., VBA Fast Letter 10-02 (Mar. 18, 2010) (recognizing that tinnitus is a symptom associated with many conditions, including acute noise exposure and noise-induced hearing loss). More importantly, the VHA examiner did not specifically address whether the Veteran's tinnitus first began in service. Notably, the VHA examiner did not reference the Veteran's description of tinnitus symptoms to the VA examiner in 2008. As these deficiencies tend to reduce the probative value accorded the VHA examiner's opinion on the question of the etiology of tinnitus, the Board finds that that opinion is not dispositive of the service connection question. Rather, in this case, the Board finds that there is sufficient other competent, probative evidence of record to establish the presence of tinnitus and likely recurrent symptoms from the time of service until the present. See 38 C.F.R. § 3.303(b). Regarding the Veteran's assertions of experiencing tinnitus during and since service, the Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994). In adopting the current rating criteria for tinnitus under Diagnostic Code 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone when there is credible evidence of continuity of symptomatology since service. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds that the Veteran is competent to state that his tinnitus began during service, and that he has continued to experience recurrent tinnitus since service to the present. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Here, the Board finds that the Veteran's assertions regarding experiencing short term tinnitus after in-service noise exposure, and recurrent symptoms of tinnitus since service, are credible. As noted above, the Veteran has confirmed in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service as documented by his service records. He has consistently stated that he experienced short term tinnitus during service, that he has experienced recurrent episodes of tinnitus since service. There is no persuasive evidence of record indicating that the Veteran's statements are not credible. In sum, the Veteran has provided competent and credible evidence that he experienced short term tinnitus after noise exposure during service, and that it has been recurrent to the present, and the Board finds no reason to question the veracity of such statements. See Charles, 16 Vet. App. 370; Hayes, 5 Vet. App. at 69-70. These statements, when viewed in relation to the Veteran's significant noise exposure in service which has been deemed to have caused his sensorineural hearing loss as well as VA's recognition that true tinnitus is a purely subjective symptom, are entitled to significant probative weight, and thus, are sufficient to establish the presence of tinnitus and a likely continuity of symptomatology from service to the present. See 38 C.F.R. § 3.303(b); 67 Fed. Reg. 59033-01 (Sept. 19, 2002); Walker (cited above). 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. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for tinnitus are met. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs