Citation Nr: 1536214	
Decision Date: 08/25/15    Archive Date: 08/31/15

DOCKET NO.  11-20 509	)	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:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel


INTRODUCTION

The Veteran served on active duty from August 1954 to August 1958.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran experienced acoustic trauma in service, is currently-diagnosed with bilateral sensorineural hearing loss, and experienced chronic symptoms of hearing loss in service and continuously since service separation.

2.  The Veteran experienced symptoms of tinnitus in service and since service separation.

3.  Hearing loss and tinnitus are etiologically related to service. 


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2015).

2.  Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the relevant laws and regulations, service connection may be granted for a 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).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The "continuity of symptomatology" provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).  

In this case, the Veteran has been diagnosed with hearing loss which is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Tinnitus is not 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) do not apply to this claim.  See Walker, 708 F.3d at 1331.

Service connection may also be established with certain chronic diseases, including hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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; 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.  As above, the one-year presumption applies.  

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

With respect specifically to hearing loss, 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). 

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).

The Veteran contends that bilateral hearing loss is related to exposure to acoustic trauma due in service.  After reviewing all the lay and medical evidence and resolving all reasonable doubt in his favor, hearing loss was incurred in service.  

First, the Veteran has currently-diagnosed bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385.  On the authorized VA audiological evaluation in December 2011, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
30
50
55
LEFT
25
30
55
60
65

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 90 percent in the left ear.  Accordingly, a current hearing loss disability in both ears is shown for VA purposes in accordance with 38 C.F.R. § 3.385.  

Next, the Veteran experienced acoustic trauma in service.  Specifically, in February 2009 and May 2011 statements and during a December 2011 VA examination, he described an incident in service where he was next to a five inch cannon when it fired.  He reported that the concussion from the cannon fire was so great that it threw him to the deck.  He reported having bleeding from both ears, diminished hearing, and reported that his ears started ringing.  He reported trouble with his hearing ever since that incident.  He also reported having constant tinnitus bilaterally, following the exposure to cannon fire in service.  

While the December 2011 VA examiner noted a discrepancy between the Veteran's statements identifying the incident occurring on the U.S.S. Sierra versus the U.S.S. Shenandoah, a review of personnel records shows that he was initially stationed aboard the U.S.S. Sierra in the mid-1950s and was subsequently transferred to duty aboard the U.S.S. Shenandoah.  In a February 2012 letter, he explained that he remembered the incident after talking to his friend C.J. who had a better recollection of the incident.  The Veteran's confusion as to which ship he was stationed during the incident has little affect his credibility.

The Veteran submitted an August 2011 statement from C.J., a fellow service member, who reported being aboard the U.S.S. Shenandoah with the Veteran.  He indicated that the Veteran had just transferred and was not familiar with the layout of the ship.  He stated that when general quarters was sounded, he got confused and wound up next to a five inch gun as it was being fired.  He reported that it knocked the Veteran to the deck and his ears and nose were bleeding.  

Thus, the Veteran has provided credible lay evidence identifying acoustic trauma from close range cannon fire in service, and he has provided credible evidence showing that he experienced hearing loss and tinnitus symptoms immediately following such noise exposure.  Therefore, the weight of the evidence shows that he experienced chronic symptoms of hearing loss in service.  Service treatment records show that whispered voice testing was 15/15 in each ear on August 1954 enlistment and August 1958 separation examination reports.  While hearing complaints were not noted in service treatment records, as discussed above, he has provided credible lay evidence identifying the acoustic trauma in service followed by hearing loss symptoms, supported by lay evidence from C.J.  

Hearing loss symptoms were continuous post-service and are etiologically related to service.  In lay statements of record, the Veteran has maintained that hearing loss symptoms and tinnitus were continuous since service separation.  An April 2010 private opinion shows that the Veteran was referred to their office for hearing loss and tinnitus.  He described the in-service exposure to acoustic trauma from a cannon blast which threw him and caused a concussion and bleeding of the nose and ears.  The private examiner opined that the Veteran's hearing loss was more likely than not due to trauma and noise exposure in service.  

While the December 2011 VA examiner opined that bilateral hearing loss and tinnitus were less likely than not caused by or a result of in-service noise exposure, the examiner did not adequately address lay evidence of symptoms of hearing loss and tinnitus in service or shortly after service-separation, which the Board has found to be credible, and the examiner relied heavily on the lack of documented evidence of hearing loss and tinnitus in service in the reasoning, stating that the Veteran entered and exited service with normal bilateral hearing sensitivity on whispered voice testing.  Moreover, 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.   

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.  In this case, the Veteran's statement with respect to having symptoms of hearing loss both in service and after service separation is credible and it is consistent with exposure to acoustic trauma in service.  Moreover, the April 2010 private opinion provides competent and credible evidence which relates both hearing loss and tinnitus to service.

For these reasons, the weight of the evidence shows that the Veteran experienced chronic symptoms of hearing loss in service and continuous symptoms of hearing loss after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303(b) have been met.  Resolving reasonable doubt in his favor, service connection for bilateral hearing loss is warranted.

Next, the evidence is at least in equipoise on the question of whether tinnitus was incurred in service.  The Veteran has provided credible lay evidence identifying the onset of tinnitus in service, consistent with his in-service noise exposure with continued symptoms post-service.  Accordingly, he has identified the initial onset of tinnitus symptomatology in service.  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").   

Moreover, the December 2011 VA examiner indicated that tinnitus was related to bilateral hearing loss.  While the December 2011 examiner indicated that tinnitus was not likely incurred in service, an April 2010 private opinion provides competent, credible, and probative evidence which relates and tinnitus to service.  Accordingly, the evidence both for and against the material question of whether tinnitus was incurred in service is in relative equipoise.  Resolving reasonable doubt in his favor, the Board finds that tinnitus began in service, that is, had its onset in service; therefore, service connection for tinnitus is warranted.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required with regard to that claim.   For these reasons, VA has fulfilled the duties to notify and assist the Veteran. 


ORDER

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted. 



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs