Citation Nr: 1342222 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-26 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2011, the Veteran testified before the undersigned during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. While the Veteran originally filed a claim for service connection for bilateral hearing loss, the Board has bifurcated that claim into a claim for left ear hearing loss and a claim for right ear hearing loss due to the medical evidence developed on appeal. The characterization of the claims as they appear on the title page reflects this development. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, tinnitus is likely related to service. 2. Resolving reasonable doubt in the Veteran's favor, left ear hearing loss is likely related to service. 3. The evidence of record does not show that the Veteran has a current right ear hearing loss disability as defined by VA regulations. CONCLUSIONS OF LAW 1. Tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Left ear hearing loss was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). 3. Right ear hearing loss was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the VCAA, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in October 2009. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the October 2009 correspondence. Given the favorable determinations reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for granting the Veteran's service connection claims for tinnitus and left ear hearing loss without detriment to his due process rights. Regarding his service connection claim for right ear hearing loss, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. The duty to assist also has been fulfilled in this case as private medical records were requested or obtained and the Veteran was provided with a VA examination of his tinnitus and hearing loss claims. The Veteran was provided an opportunity to set forth his contentions regarding his claims during his Board hearing in November 2011 before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the November 2011 hearing the undersigned identified the issues on appeal, and information was solicited regarding the nature and etiology of his tinnitus and hearing loss disabilities. Moreover, the record was left open for 30 days to permit submission of potential items of evidence discussed at the hearing. Therefore, the Board finds that it fulfilled its duty under Bryant. The Board further finds that the available lay and medical evidence is sufficient for an adequate determination of the claims decided herein. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Generally, in order to prevail on the issue of service connection on the merits, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In this case, sensorineural hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a) because it is considered an organic disease of the nervous system; therefore, 38 C.F.R. § 3.303(b) applies. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background and Analysis The Veteran seeks service connection for tinnitus and hearing loss as a result of his military service. In his written submissions and Board hearing testimony, he contends that he was exposed to acoustic trauma during service. He testified that while a medic at the artillery school at Fort Sill, Oklahoma, he stood right behind heavy artillery pieces while they were being fired during Army student training in heavy artillery. The determination of whether a veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. at 157. The regulations set forth in 38 C.F.R. § 3.385 operate only to establish when a hearing loss can be service connected. Id. at 159. It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service. The Veteran's DD Form 214 is negative for any indication that the Veteran received any awards or decorations indicative of participation in combat. His military occupational specialty was listed as a medical specialist and it was noted that he had taken medical corpsman courses. His service treatment records were obtained and are negative for a report or diagnosis of a hearing loss or tinnitus disability during service. A March 1964 enlistment examination showed the Veteran's hearing was within normal limits. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) No report 0(5) LEFT 10(25) 0(10) 0(10) No report 10(15) (The figures in parentheses are based on International Standards Organization [ISO] Standards to facilitate data comparison. Prior to November 1967, service audiometric results were reported in American Standards Association [ASA] Standards in service treatment records.) Audiogram findings during the Veteran's February 1967 discharge examination, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) No report 0(5) LEFT 0(15) 0(10) 0(10) No report 0(5) The Board notes that the Veteran checked the "no" box when asked on his February 1967 report of medical history whether he ever had hearing loss. Post-service, a private audiogram dated in September 2009 is found in the claims file, but the results of this audiogram are in graphical form and are not numerically interpreted, so it is not technically adequate to determine whether the Veteran had a bilateral hearing loss disability meeting the requirements of 38 C.F.R. § 3.385. However, it is clear from this document that the Veteran did not show any right ear hearing loss disability pursuant to VA regulations as only the measurement for 3000 Hz registered higher than 26 decibels, but it was still less than 40 decibels. On the other hand, measurements did show left ear hearing loss, as 45 decibels were noted at both the 3000 Hz and 4000 Hz levels. In September 2009 correspondence, L.L.I., the private audiologist who conducted the hearing test that month, reported that pure tone results of the audiologic evaluation revealed a mild sloping to moderate, high frequency sensorineural hearing loss in the right ear and a moderate high frequency sensorineural hearing loss in the left ear. She also reported that speech recognition scores on the Maryland CNC Word List were 96 percent in both ears. It was noted that the Veteran also said that he occasionally had trouble hearing normal conversation, especially when background noise was present. She stated that the Veteran told her that his tinnitus was a constant high pitch noise in both ears. Dr. L.L.I. opined that it was just as likely as not that at least some of the Veteran's hearing loss and tinnitus were the result of his exposure to hazardous noise while in service. She noted that the Veteran reported that he was exposed to hazardous noise in service from field/heavy artillery as a medic for the field artillery school. He told her that he wore hearing protection daily while in service when it was available. She also recommended that he consult a physician for his asymmetric hearing loss and consider use of a hearing aid. In his December 2009 Notice of Disagreement, the Veteran stated that he was stationed at Fort Sill, Oklahoma, from January 1965 to May 1965 where he supported student artillery training operations. He sat behind the firing line some 50 to 75 yards to provide immediate aid in case a student was injured. The students were training on 105 mm, 155 mm, 175 mm, and 8-inch guns. He said that the sound and concussion was loud and intense. The Veteran also related that he began to notice tinnitus several weeks into this duty assignment and that a doctor told him this ringing would go away. He conceded that his tinnitus improved after he left Fort Sill, but never completely went away. The Veteran added that as he aged, his tinnitus progressively got worse. He said that the ringing in his ears had gotten ever louder and sometimes disturbed his sleep. The Veteran underwent a VA audiological examination in January 2010. The Veteran told the examiner that while in service at Fort Sill for six months he supported heavy artillery training and was on the firing range without hearing protection almost every day standing behind troops learning to fire. Subsequently he served as a medic in Korea for 13 months and then at Fort Carson in Colorado for 8 months where he trained Army medics. Post-service, he worked in a liquor store for six months, then as a computer operator for six months. The Veteran then went to college and subsequently taught computer sciences and information technology (IT) for two years. The Veteran then worked as a computer programmer and IT consultant. He denied middle ear problems, ear surgeries, dizziness, or a family history of hearing loss. The Veteran complained of 45 years of tinnitus and hearing loss for many years since service at Fort Sill. Audiogram findings during the January 2010 VA examination, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 35 35 LEFT 15 15 35 50 50 Speech recognition scores on the Maryland CNC Word List were 96 percent for the right ear and 88 percent for the left ear. The examiner reported that pitch matching testing was done for tinnitus which showed recurrent tinnitus in the right ear that was very high frequency in composition and severe, and recurrent tinnitus in the left ear that was high frequency in composition and moderately severe. The January 2010 VA examiner noted that asymmetric hearing loss was indicative of individual gun use without hearing protection. This examiner thought that exposure to the firing range at Fort Sill would not lead to asymmetrical hearing loss, but equal loss in both ears. Therefore, the VA examiner opined that it was less likely than not that current hearing loss and recurrent tinnitus were secondary to acoustic trauma in service. In his June 2010 VA Form 9, Substantive Appeal, the Veteran stated that while at Fort Sill he worked out of a dispensary and was in regular contact with a physician with whom he discussed the ringing in his ears. The Veteran related that this physician told him the ringing would go away with time, although it never went away completely. He also related that at discharge a doctor told him that if he wanted to complain about any injury to his ears then he would be extended for six months. During his November 2011 Board hearing, the Veteran testified that he was a medic in service and was attached to the artillery unit at Fort Sill from January 1965 to May 1965. He said that three to four days a week he sat in a jeep ambulance with no hearing protection, unless range officers forced him out on the line, while Army students fired 105 mm, 155 mm, 175 mm, and 8-inch guns. He told the undersigned this was "just a lot of exposure to tremendous noise, tremendous impact." See hearing transcript at p. 5. He also testified that he told the examiner handling his discharge examination that he still had ringing in his ears, but that the examiner told him the ringing would go away. The Veteran stated that the ringing never did go away. A doctor who worked with him at the Fort Sill dispensary told him the same thing with a recommendation to put gauze in his ears. The Veteran said he bought some ear plugs instead. He also commented that he believed his hearing loss was on account of his tinnitus and that he "kinda, sorta read(s) lips." Id. at p. 7. Under questioning he could not recall whether he discussed tinnitus or hearing loss with a private doctor until the late 1980s when his family doctor told him he had tinnitus and that it was not a reversible process. The Veteran also testified to recreational shooting once a year for two days when he went pheasant hunting from about 1980 to 2003. When so engaged he might fire as many as 10 or 12 rounds with a 20-gauge shotgun while in service he would fire a M14 rifle in a foxhole 200 to 300 times a day for two to three weeks. As to asymmetrical hearing loss, the Veteran explained that the way he parked and sat in his jeep behind the guns exposed his left ear to greater noise than his right ear. Id. at pp. 11-12. In December 2011 correspondence, Dr. R.A.D., the Veteran's primary care physician, noted that the Veteran had been his patient since 1989 when he had first diagnosed the Veteran with tinnitus. The Board's review of the medical and lay evidence of record indicates that the Veteran's current tinnitus and left ear hearing loss are due to service and, thus, service connection is warranted for both claims. Initially, the Board notes that in the VA audiological examination cited above the Veteran was diagnosed with tinnitus and left ear hearing loss pursuant to the provisions of 38 C.F.R. § 3.385. As to service incurrence, while his service treatment records are silent as to any documented hearing loss or tinnitus disorders during service, the Board finds that the Veteran's credible lay evidence of exposure to loud noise during service, where he was in proximity to the large guns firing on the artillery range at Fort Sill for five months, is consistent with the circumstances and conditions of his military service as an Army medic. He has presented competent and credible evidence to show in-service occurrence of acoustic trauma. His service activities also are capable of lay observation and appear to be consistent with his duties. See Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007) (holding that medical evidence is not always required to establish the elements of in-service incurrence and nexus). After reviewing the lay and medical evidence of record, the Board also finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current tinnitus and left ear hearing loss disorders are the result of noise exposure during service. While the examiner who conducted the VA audiological examination in January 2010 suggested that the cause of the Veteran's asymmetrical hearing loss was post-service recreational noise exposure, the Veteran credibly testified that he engaged in pheasant hunting on only two days of the year for 20 odd years after service. He also had no occupational noise exposure as he worked in the computer and IT field after service. Further, the Veteran compared his post-service shooting to his in-service shooting. The duration and intensity of acoustic trauma as experienced by the Veteran, if his testimony is to be believed, clearly supports the notion that he suffered greater injury to his hearing from noise concentrated over months of service on the artillery range than from pheasant shooting one weekend a year for 20 years. He also credibly explained during his Board hearing that while he was stationed behind the firing line on the artillery range in service, he had parked his jeep ambulance in such a way that his left ear was exposed to more of the acoustic trauma than his right ear. He also credibly testified that hearing difficulties, such as ringing in his ears, first developed in service and that he, as a medic, discussed this issue with medical colleagues. A veteran may establish service connection for a current hearing disability by showing that the current disability is causally related to service. Actual hearing loss does not have to be shown during active duty. See Hensley, 5 Vet. App. at 160; see also 38 C.F.R. § 3.304(d) (noting that service connection can be granted for disease diagnosed after discharge). In addition, the September 2009 private audiologist opined that it was just as likely as not that at least some of the Veteran's tinnitus and hearing loss were the result of exposure to acoustic trauma in service. His primary care physician also submitted correspondence to the effect that he had diagnosed the Veteran with tinnitus when he first began treating the Veteran back in 1989. 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 that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the Board finds that the lay and medical evidence is, at the very least, in equipoise as to the question of whether the Veteran's tinnitus and left ear hearing loss are related to service. There can be no doubt that further medical inquiry could be undertaken with a view towards additional development of these claims, such as whether his recurrent tinnitus is or is not related to his hearing loss and whether service members constantly exposed to the artillery range commonly contract asymmetrical hearing loss. However, the Board notes that these claims have now been pending for more than four years. The Board finds that under the circumstances of this case, the written contentions and testimony of the Veteran, and the private medical opinion of Dr. L.L.I., are sufficient to provide evidence of a nexus, or relationship, between the Veteran's current tinnitus disorder and service and between his left ear hearing loss disorder and his period of active service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus); Barr, 21 Vet. App. at 307-09 (holding that medical evidence is not always required to establish the elements of in-service incurrence and nexus). Therefore, the Veteran has established a link between his tinnitus and military service and between his left ear hearing loss and military service. In view of the above, and in affording the Veteran the benefit of the doubt as the law requires, the Board finds that service connection is warranted for both the Veteran's tinnitus disability and his left ear hearing loss disability. As the Board finds that the Veteran has provided evidence of those elements required for a grant of service connection for these claims, the claims for service connection for tinnitus and for left ear hearing loss are granted. However, based on the evidence of record, the Board finds that service connection for right ear hearing loss is not warranted. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The regulation at 38 C.F.R. § 3.385 defines hearing loss disability for VA purposes. Hearing loss is only considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The January 2010 VA audiogram and the September 2009 private audiogram fail to show that the Veteran's right ear hearing loss reflects this standard. In order for the Veteran to be granted service connection for right ear hearing loss, there must be evidence of a service-connected disease or injury and a present disability which is attributable to such disease or injury. While there is evidence of exposure to acoustic trauma during service, as the Board finds the Veteran's lay testimony of exposure to noise in service credible, all of the available service and post-service medical evidence does not reveal audiometric testing which demonstrates the pertinent level of right ear hearing loss required by regulation to constitute a disability. In the absence of proof of a present disability there can be no valid claim. See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Therefore, service connection for a right ear hearing loss is not warranted. For the foregoing reason, the claim for service connection for right ear hearing loss must be denied. The evidence for this claim is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs