Citation Nr: 1343409 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 13-01 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral 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 Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. FINDINGS OF FACT 1. The Veteran's currently diagnosed bilateral hearing loss was not present during active service, did not manifest within one year of discharge from service, and did not develop as a result of any incident during service. 2. Affording the Veteran the benefit of the doubt, tinnitus is causally related to noise exposure during active service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duty to notify was satisfied in an October 2009 letter to the Veteran. The duty to assist has also been satisfied. The Veteran's service treatment records, personnel records and statement from his private doctor are in the claims file and were reviewed in connection with his claim. The Veteran has not identified any additional outstanding evidence in these matters that could be used to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. A VA examination was obtained in May 2010. The VA examination was adequate, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered a well-supported opinion based on consideration of the full history of the Veteran's claimed disorders. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Appellant in developing the facts pertinent to his claim. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, certain chronic diseases (e.g., bilateral hearing loss and tinnitus) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 1. Bilateral hearing loss The Veteran claims that he is entitled to service connection because bilateral hearing loss was incurred as a result of acoustic trauma during service. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's currently diagnosed bilateral hearing loss became manifest or otherwise originated during his period of service, within one year of discharge from service or is otherwise related to his military service. The Veteran's DD-214 shows that he had foreign service in Europe with a military occupational specialty (MOS) of a stock clerk. The Veteran reported that part of his duties involved monitoring the artillery range and picking up all the "brass" while live fire was occurring. Further, while stationed in Germany, the Veteran stated he was sent with field artillery units to assist with live fire missions without any hearing protection. The Board notes that the Veteran's DD-214 mentions that he received a Marksman award for the M14 rifle, which indicates he was in close proximity to gunfire in service. The Veteran is competent to describe the nature and extent of his in-service noise exposure. Thus, based on the foregoing, the Board finds that the Veteran indeed had noise exposure during service. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran's January 1968 enlistment examination revealed clinically normal ears, with audiometric results as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 -- 15 LEFT 5 15 0 -- 25 His April 1970 separation examination again revealed clinically normal ears, with the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 -- 25 LEFT 0 0 0 -- 30 The remainder of the record contains no evidence that the Veteran was diagnosed with bilateral hearing loss during active service. The Veteran's contemporaneous service records fail to show that the onset of bilateral hearing loss occurred during service or that the Veteran ever complained of or sought medical treatment for his hearing. There is also no indication that the Veteran's bilateral hearing loss was manifest to a degree of 10 percent or more within one year of his discharge in April 1970. The earliest evidence of record is an October 2009 letter from the Veteran's private doctor which indicates he has been diagnosed with hearing loss. The Veteran was afforded a VA examination in May 2010, where he was diagnosed with bilateral sensorineural hearing loss. However, the examiner found no nexus between the Veteran's present hearing loss and any in-service event. The examiner opined that the Veteran's bilateral hearing loss was less likely as not related to his military service. In support of this conclusion, she observed that the Veteran's hearing was within normal limits on both entrance and discharge from service and there was no significant threshold shift noted in his records. The examiner also cited to a study on military noise exposure from the Institute of Medicine which found there was no scientific basis for concluding that hearing loss which develops 20 or 30 years later is casually related to military service. The only medical evidence supporting the Veteran's contention that his bilateral hearing loss was the result of in-service noise exposure comes from the October 2009 letter from his private otolaryngologist. The doctor opined that it is at least as likely as not that the Veteran's diagnosed sensorineural hearing loss and tinnitus both began and were the result of his in-service exposure to acoustic trauma. However, this opinion was provided without a rationale and is given no weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). In contrast, the May 2010 VA examiner's opinion considers the Veteran's contentions, the medical evidence of record and the current medical literature in coming to the conclusion that the Veteran's bilateral hearing loss is not related to his military service. The probative medical evidence simply fails to adequately establish any nexus between any current bilateral hearing loss and the Veteran's military service. The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing noise exposure during service and hearing loss during or after service). Barr, supra; Washington, supra. Lay testimony is competent 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). However, the Board finds that the Veteran's lay statements maintaining he had hearing loss since service is outweighed by the medical evidence of record, namely the May 2010 VA examiner's negative nexus opinion and the Veteran's April 1970 separation examination reflecting normal hearing at discharge. The totality of the evidence simply fails to show that the onset of any current bilateral hearing loss occurred during the Veteran's service or manifested to a compensable degree within one year of discharge. Based on the totality of the record, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for bilateral hearing loss. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C.A §5107. 2. Tinnitus The Veteran contends that his tinnitus is the result of acoustic trauma from being near gunfire without proper hearing protection during active military service. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012). Because tinnitus is "subjective," its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (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 Veteran filed a claim seeking service connection for bilateral hearing loss and tinnitus in September 2009. In his claim, the Veteran stated that both conditions had their onset in 1970, the same year as his discharge from active duty service. As discussed above, the Board concedes that the Veteran was exposed to acoustic trauma during his military service. The Board notes that the Veteran's DD-214 mentions that he received a Marksman award for the M14 rifle. The Veteran's submitted statements in support of his claim note that his duties included monitoring an artillery range and being sent with field artillery units to assist with live fire missions without any hearing protection. The Veteran's service treatment records make no mention of any complaints, treatment or diagnosis of tinnitus. Post-service, the Veteran worked in an engineering office at General Motors and denied any occupational or recreational noise exposure. The Veteran claims that he has experienced tinnitus since service. As discussed above, an October 2009 letter from his private otolaryngologist opined that it is at least as likely as not that the Veteran's diagnosed sensorineural hearing loss and tinnitus both began and were the result of his in-service exposure to acoustic trauma. However, this opinion was provided without a rationale and given no weight. See Nieves-Rodriguez supra. In May 2010, the Veteran was afforded a hearing loss and tinnitus VA examination. The Veteran complained of tinnitus with recurrent symptoms in both ears and onset occurring 30 to 40 years ago. There is no evidence that would contradict or question the Veteran's statements, so in this regard the Board finds his statements to be credible. He has consistently stated that he has experienced ringing in his ears since service. As discussed above, tinnitus is a condition that a lay person can describe because it is defined as a subjective noise in the ears. Charles, 16 Vet. App. at 374. Thus, the Board finds the Veteran credible with regard to his claim of incurrence of tinnitus in-service and continuity of tinnitus since service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). After review of the evidence, the Board finds that service connection is warranted for tinnitus based on the competent and credible evidence that tinnitus began during service and has existed since. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner. However, the VA examiner failed to consider in his opinion the Veteran's credible statements that he experienced ringing in his ears during service that has continued to the present time. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The premise of the examiner's opinion is inaccurate because he must consider the Veteran's lay assertions of symptomatology that he is competent to observe, unless the Board has explicitly found that the assertions are not credible. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan, 451 F.3d at 1336. Further, the Board notes that there is no evidence to indicate post-service noise exposure as a possible cause of the Veteran's tinnitus. Instead, the Veteran testified that he worked in an engineering office following his discharge from the military and denied any occupational or recreational noise exposure. Therefore, the Board has found the Veteran's assertions credible. Based on the foregoing, and giving the benefit of the doubt to the Veteran, the Board finds the evidence at least in equipoise as to whether the Veteran's tinnitus is related to service. The evidence of record demonstrates that the Veteran has tinnitus; that he was exposed to acoustic trauma in service; that he was not exposed to occupational noise exposure post-service; and that he has experienced tinnitus since service. While the Veteran's May 2010 VA examination does not attribute the Veteran's current tinnitus to his military noise exposure, the examiner's opinion did not address the Veteran's competent statements reporting symptoms since service, and the opinion was thus based on an inaccurate factual premise. Consequently, service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b). Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). The current evidence, as previously discussed, is sufficient to grant the benefit sought on appeal. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs