Citation Nr: 1416412 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 10-47 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1971. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Diego, California (RO). FINDINGS OF FACT 1. The Veteran experienced acoustic trauma in service. 2. The Veteran has currently diagnosed sensorineural hearing loss and tinnitus. 3. Currently diagnosed bilateral hearing loss and tinnitus are etiologically related to noise exposure in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. 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. With a 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. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). Tinnitus is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to that claim. Walker, supra. Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing 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 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. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection Analysis for Bilateral Hearing Loss and Tinnitus The Veteran contends that bilateral hearing loss and tinnitus are related to exposure to acoustic trauma from his duties as a radio intercept operator and analyst in service. In a September 2008 statement, he indicated that his job required him to wear radio headsets and headphones for eight to ten hours daily, that he was constantly tuning in at high volumes, and that he was subjected to loud, high pitched signals and interference. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds, resolving all reasonable doubt in the Veteran's favor, that hearing loss and tinnitus were incurred in service. The Veteran has currently diagnosed bilateral hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385 and has tinnitus. On the authorized VA audiological evaluation in November 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 40 50 45 LEFT 15 30 50 50 50 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Accordingly, the Board finds that the Veteran has met the threshold criteria for establishing a current hearing loss "disability" in both ears for VA purposes in accordance with 38 C.F.R. § 3.385. The November 2008 VA examination and a November 2012 letter from a private physician also identify a current diagnosis of tinnitus. The Board finds that the Veteran experienced acoustic trauma in service. The Veteran's DD Form 214 and personnel records reflect a duty MOS as a Voice Intercept Specialist. Personnel records reflect specific duties in the operation of voice communications equipment, to include conducting frequency search missions and the transcription and analysis of voice communications signals. The Veteran has also provided lay evidence describing his duties, an unclassified job description and has provided additional research with regard to risks of hearing damage related to the use of headphones. The Board finds that the Veteran is competent to describe noise exposure in service, and the Board finds that his report noise exposure related to duties as a voice intercept specialist is credible and is well supported by the evidence of record. The Veteran denied having any post-service occupational and recreational noise exposure during a November 2008 VA examination and there is no indication in the record that this account is not credible. The Board finds that the Veteran did not experience chronic symptoms of hearing loss in service and continuous symptoms of hearing loss after service separation. Service treatment records contain no complaints, diagnoses, or treatment for hearing loss and the Veteran has not otherwise identified hearing loss symptoms in service. On an enlistment audiological evaluation in June 1967, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 NR 0 LEFT 10 5 5 NR 0 Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The ASA standards have been converted to ISO-ANSI standards. On the service separation audiological evaluation in April 1971, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 NR 0 LEFT 0 0 0 NR 0 Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, such is not required. Competent 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. Id. There is conflicting evidence of record with regard to whether currently diagnosed hearing loss is related to noise exposure in service. A November 2008 VA examiner opined that bilateral sensorineural hearing loss was less likely as not caused by or related to military noise exposure based on normal audiometric threshold testing in service and the absence of evidence showing an onset of hearing loss within a reasonable time post-service. A May 2010 opinion from a physician at ENT Associates of San Diego indicates that the Veteran's hearing loss could be associated with military noise exposure. In January 2012 opinion, a second physician at the ENT Associates of San Diego opined that bilateral hearing loss was more likely than not caused by military noise exposure. In providing the January 2012 opinion, the physician described the nature of the Veteran's noise exposure in service and noted that it was statistically unlikely that the Veteran left service with perfect hearing in all frequencies as is exit audio suggested. Notably, in his December 2010 substantive appeal, the Veteran indicated that he did not have an actual hearing test performed at the time of discharge. In this case, the Board finds that both the November 2008 VA opinion and the January 2012 private opinion are probative, consider the Veteran's history of noise exposure in service, and provide a well-reasoned rationale for the onions rendered based on findings from the record. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that the January 2012 private opinion provides competent, credible, and probative evidence which relates bilateral hearing loss to noise exposure in service. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. For these reasons, the Board finds that the service connection for bilateral hearing loss is warranted. The Board finds that the evidence is at least in equipoise on the question of whether tinnitus was directly incurred in service. In his initial claim, the Veteran indicated that tinnitus had its onset in service. During a November 2008 VA audiological examination, the Veteran did not report or know of a specific onset for tinnitus, but believed that he had tinnitus for at least 20 years or more. In a more recent January 2012 private evaluation, the Veteran reported that he had the onset of binaural tinnitus in service, concomitant with loud noise exposure. The November 2008 VA examiner opined, based on the Veteran's report at the time of examination, that there was no indication of onset of tinnitus within a reasonable time post-service, and that tinnitus, although consistent with current high frequency sensorineural hearing loss, was less likely as not caused by or related to military noise exposure. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). However, the Board finds that there is some inconsistency in the Veteran's report with regard to the onset of tinnitus. While the Veteran stated during a VA examination that he did not recall when he had the onset of tinnitus, during a more recent private evaluation, he was able to identify an in service onset for tinnitus. The Board finds, nonetheless, that because tinnitus appears to be related to currently diagnosed sensorineural hearing loss, as indicated by both the November 2008 VA examiner and the January 2012 private examiner, service connection for tinnitus is warranted. For these reasons, the Board finds that the evidence both for and against the material question of whether tinnitus is related to noise exposure in service is in relative equipoise. Resolving the benefit of the doubt in favor of the Veteran, the Board finds service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs