Citation Nr: 1509116 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-22 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant was a member of the United States Navy Reserve between July 1967 and October 1972. During that time, the appellant had various periods of active duty for training (ACDUTRA) and various periods of inactive duty training (INACDUTRA), including a verified initial period of ACDUTRA from January 31, 1967 to July 19, 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that denied the appellant's claims of entitlement to service connection for bilateral hearing loss and tinnitus. In May 2014, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. The appellant's bilateral hearing loss is as likely the result of acoustic injury that occurred during ACDUTRA and/or INACDUTRA as it is the result of some other factor or factors. 2. The appellant's tinnitus is as likely the result of acoustic injury that occurred during ACDUTRA and/or INACDUTRA as it is the result of some other factor or factors. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2014). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefits sought on appeal (service connection). Thus, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. The Merits of the Claims The appellant contends that he was exposed to extreme acoustic trauma from aircraft engines during his service in the Navy Reserve working as an aviation ordananceman. He further contends that this in-service noise exposure is the causative agent of his current bilateral hearing loss and of his current tinnitus. The appellant has indicated that he started to have problems with hearing loss during his initial period of ACDUTRA and that these problems have continued to the present time. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to establish service connection for a claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in a current disability was incurred during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Furthermore, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). A veteran's lay statements may be competent 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), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Difficulty hearing is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The determination of whether a veteran has a ratable hearing loss 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 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 that higher threshold levels indicate some degree of hearing loss. Hensley, at 157. Further, section 3.385 operates only to establish when hearing loss is considered to be of such severity to constitute a current "disability" for the purposes of service connection. Hensley at 159. 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 evidence of record indicates that in this case the appellant was likely exposed to acoustic trauma (i.e., acoustic injury) during his various periods of ACDUTRA and/or INACDUTRA by virtue of his activities around jet engines. The absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post- service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In March 2010, Training Letter 10-02 addressed the adjudication of claims for hearing loss and tinnitus. In that letter, the Director of the VA Compensation and Pension Service indicated that the two most common causes of sensorineural hearing loss are presbycusis (age-related hearing loss) and noise-induced hearing loss (caused by chronic exposure to excessive noise). It was also noted that the presence of a notch (of decreased hearing) that may be seen on audiograms generally at frequencies of 3000, 4000, or 6000 Hertz with a return toward normal at 8000 Hertz may be indicative of noise-induced hearing loss. Prior to November 1967, audiometric test results 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). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. The appellant's service medical treatment records reflect that an audiological evaluation was accomplished in connection with the July 1966 enlistment examination. The associated converted pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 15 20 N/A LEFT 25 15 20 25 N/A Thereafter, no audiometric testing was performed during any examination; whispered voice and spoken voice testing or whispered voice only testing was utilized. The associated reports indicated normal hearing for the examinations conducted in July 1967, December 1967, December 1968, and December 1971. There is no mention in the appellant's reports of examination, including the December 1971 examination, of any problems with hearing or tinnitus and no complaints of these conditions were noted. The evidence of record includes a report from a private audiologist dated in February 2011. The audiologist stated that the appellant complained of having difficulty hearing and central tinnitus. The audiologist noted that the appellant had had naval service between 1967 and 1972. Audiometric testing was performed by the private audiologist in February 2011, and the puretone threshold results of that testing in decibels as determined by the Board from the audiogram (see Kelly v. Brown, 7 Vet. App. 471, 474 (1995)), were as follows: HERTZ 500 1000 2000 3000 4000 8000 RIGHT 20 25 60 55 50 35 LEFT 25 25 55 60 55 40 Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes. The Board notes that the puretone threshold results for the lower frequencies (500 and 1000 Hertz) were similar to the 1966 findings. The Board also notes the presence of a notch indicating noise-induced hearing loss as described in the VA Training Letter 10-02 discussed above. The audiologist rendered a diagnosis of moderate high frequency sensorineural hearing loss in each ear. The audiologist stated that the appellant's hearing profile was a noise-induced hearing profile and concluded that it was more than likely that the appellant's hearing loss and tinnitus were due to his military experiences, particularly working around jet engines. The appellant was afforded a VA audiometric examination in March 2011; the examiner reviewed the appellant's claims file. The examiner stated that the appellant's hearing was normal in both ears at his entry testing in 1966. The examiner noted that, while whispered voice testing in 1968 was normal, this test is not sensitive to high frequencies. The appellant reported that he believes the onset of his hearing loss occurred in approximately 1967, when his wife complained and that the hearing loss had gotten worse over the years. He also complained of constant tinnitus and reported that he was uncertain of the onset of the tinnitus although it was longstanding. The appellant stated he had loaded and unloaded bombs from aircraft while on naval duty. The examiner stated that the appellant had been around excessive noise such as aircraft engine noise while he was in the reserves. The examiner further stated that the appellant's 40 years of work as a truck driver after service did not expose him to any kind of excessive noise occupationally. The puretone threshold results from the October 2009 VA audiometric testing, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 35 80 90 LEFT 25 30 40 70 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 80 percent in the left ear. Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes. The examiner opined the appellant's current hearing loss was not caused by or the result of noise exposure while in the military because there was no deterioration of hearing on any of the appellant's military hearing tests nor were there any threshold shifts in his hearing. However, the Board notes that, because no audiometric examination was conducted after the entry examination, it is unknown what the appellant's thresholds were and therefore it is unknown whether threshold shifts occurred or not or whether there was deterioration of the appellant's hearing or not. The examiner also opined that the appellant's current tinnitus was not caused by or the result of noise exposure while in the military because there was no documentation of tinnitus in his service medical treatment records. The examiner did not provide any opinion as to the etiological cause of the appellant's hearing loss or tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Active military, naval, or air service includes any period of active duty or ACDUTRA during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or for injury incurred in or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Viewing the evidence in the light most favorable to the appellant, the positive evidence of record consists of the fact that he currently suffers from bilateral sensorineural hearing loss (SNHL), that there is clinical evidence to the effect that exposure to acoustic trauma does cause SNHL, that there is clinical evidence that he did not incur acoustic injury after service and that there is objective evidence to support the appellant's reports of his exposure to acoustic trauma in service. The appellant's Navy service records indicate that he was an aviation ordananceman (AO). See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event; for example, the rate of a Navy aviation ordananceman is listed as an MOS that is "highly probable" for exposure to hazardous noise.) Therefore, the Board accepts the appellant's assertions of in-service noise exposure as credible and finds that an in-service injury due to noise exposure during the appellant's Navy Reserve service is established. In addition, the evidence of record includes a private audiometric opinion relating the appellant's bilateral hearing loss to his military noise exposure. Furthermore, the appellant testified that he noticed hearing loss during his initial period of ACDUTRA. Accordingly, the remaining question is whether the appellant's current bilateral hearing loss is attributable to this ACDUTRA and/or INACDUTRA injury. Since no other explanation other than acoustic trauma has been specifically advanced to account for the appellant's current hearing deficits, these facts and the doctrine of reasonable doubt provide a proper basis for granting service connection for bilateral hearing loss. For these reasons, the Board finds that evidence for and against the appellant's claim is at least in relative equipoise on the question of whether the currently diagnosed bilateral hearing loss is related to acoustic injury during the appellant's various periods of ACDUTRA/INACDUTRA or to post-service exposure to acoustic trauma. Therefore, the Board concludes that evidence for and against the appellant's claim for service connection for bilateral hearing is at least in approximate balance. The Board will resolve any doubt in the claimant's favor and finds that the appellant's bilateral hearing loss is as likely the result of his noise exposure during the performance of his naval reserve duties as it is the result of some other factor or factors. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Turning to the tinnitus claim, the appellant has herein been granted service connected for his bilateral hearing loss based on acoustic trauma in service and the Board notes that "an associated hearing loss is usually present" with tinnitus. THE MERCK MANUAL, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. "High frequency tinnitus usually accompanies [noise-induced] hearing loss." THE MERCK MANUAL, Sec. 7, Ch. 85, Inner Ear. The evidence unfavorable to the claim consists of the service medical records which contain no mention of tinnitus, the many years between service and clinical documentation of tinnitus and the negative VA audiology opinion. Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently has service-connected bilateral SNHL as well as tinnitus, and that, based on his MOS, he was exposed to acoustic trauma while he was on active duty. Also, the appellant is competent to assert occurrence of an in-service injury. See, e.g., Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, there is a favorable private audiology opinion. The evidence for and against the claim for service connection for tinnitus is at least in approximate balance. The Board finds that the appellant's tinnitus is as likely the result of his noise exposure (i.e., acoustic injury) during his various periods of ACDUTRA and/or periods of INACDUTRA or it is as likely a symptom of his service-connected noise-induced hearing loss as it is the result of some other factor or factors. Accordingly, service connection is warranted for tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs