Citation Nr: 1602517 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 08-28 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1965 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. In July 2014, the Board remanded this case to the RO for additional development. The Board once again remanded this case for further development in July 2015. The requested development has been completed. The matter is now ready for appellate review FINDINGS OF FACT 1. The Veteran currently has bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran currently has tinnitus. 3. The Veteran was exposed to acoustic trauma during service. 4. The Veteran's bilateral hearing loss is related to the acoustic trauma in service. 5. The Veteran's tinnitus is related to the acoustic trauma 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. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). In this case, because the Board is granting the full benefits (service connection) sought on appeal, the claims are substantiated, and there are no further VCAA duties or duties to explain compliance with the VCAA. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). 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 initially diagnosed after service 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). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, bilateral sensorineural hearing loss (organic disease of the nervous system) and tinnitus are considered chronic diseases for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claims for service connection for hearing loss and tinnitus. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran's military records establish that he served as a boiler technician in the engineering section of several naval warships, including the aircraft carrier USS Independence (CVA-62). He has reported that he was exposed to constant engine and machinery noise without hearing protection while pursuing his duties aboard ship during active service. He contends that his bilateral hearing loss and tinnitus are directly related to his in-service noise exposure. The Board concedes that the Veteran was exposed to acoustic trauma during active naval service, as exposure to machinery noise is consistent with his documented duties as a boiler technician. The Veteran's service treatment records show that on audiological evaluation during entrance examination in August 1964, his pure tone thresholds, in decibels, converted from the ASA standard then in use to the ISO standard currently used by VA, were as follows: 20, 20, 10, 20 and 15 in the right ear and 20, 10, 15, 25 and 20 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. On audiological evaluation during service separation examination in April 1968, the Veteran's pure tone thresholds, in decibels, converted from the ASA standard then in use to the ISO standard currently use by VA, were as follows: 20, 5, 20, 10, 5, and 25 in the right ear and 30, 20, 10, 15, and 10 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran filed his original claim for service connection for tinnitus and bilateral hearing loss in July 2007. In support of his claim, the Veteran submitted a July 2007 private audiogram which revealed that he had decibel level readings of 70, 80, 85, 90, and 90 in the right ear and 100, 100, 100, 100, and 100 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. The Veteran was noted to have severe to profound hearing loss and to have tinnitus, bilaterally, which he reported sounded like "a jungle in there". The Veteran also submitted a letter from his private otolaryngologist, S. G., M.D., who indicated that he had evaluated the Veteran in regard to noise-induced hearing loss while in active military service. He stated that after a thorough ear nose and throat examination as well as a thorough review of the Veteran's audiogram he had determined that the Veteran had sensorineural hearing loss due to noise-induced trauma while in active military service. The Veteran was afforded a VA examination in January 2008. At that time, the Veteran reported having had bilateral progressive hearing loss that was initially noted many years ago, with a complete loss of hearing for the left ear following stapedectomy surgery in 2004. He also complained of bilateral constant tinnitus. The examiner noted that the Veteran served in the Navy from 1964 to 1968 as a boiler room technician. Noise exposure included a 4 year history of unprotected military noise exposure to boiler room noise and 5 inch guns. Civilian and recreational noise exposure was unremarkable. The Veteran was noted to have bilateral tinnitus, which he reported started in service. He indicated that it was constant. Audiological testing performed at that time revealed decibel level readings of 80, 65, 75, 90, and 105 in the right ear and 105+, 105+, 105+, 105+, and 105+ in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 92 percent in the right ear and could not be assessed in the left ear. The examiner rendered a diagnosis of moderately severe to profound mixed hearing loss for the right ear and profound mixed hearing loss for the left ear. The examiner indicated that after reviewing the Veteran's claims folder, audiological history, noise history, medical history, and examination results, it was her opinion that it was less likely than not that the unprotected military noise exposure caused the onset of his hearing loss and tinnitus. The examiner noted that the opinion was based on the fact that the Veteran's hearing was normal for both ears (with the exception of a hearing loss at 6000 Hz for the left ear) on his enlistment audiogram and his hearing was normal, bilaterally, (even improved at 6000 Hz for the left ear) at his discharge audiogram. Therefore, the Veteran's hearing loss started after he left the military. The examiner noted that once an individual was removed from the noise source, the noise could not cause any further progression on the individual's hearing. The examiner further indicated that the Veteran had an ear disease (otosclerosis) which was associated with hearing loss. Moreover, since there was no complaint of tinnitus while in the service and no hearing loss and/or threshold shift noted while in the service, there existed no evidence to support the Veteran's claim of tinnitus. In a January 2008 letter, J. O., the Veteran's sister, indicated that she had been around the Veteran all his life. She reported noticing a change in the Veteran's hearing shortly after his return from Vietnam. She indicated that he started asking to have statements repeated and would miss the topics of most conversations. She noted that the Veteran always said it was because of the noise in the boiler room. She stated that she had witnessed the Veteran's hearing become worse over the years. She noted that she was with the Veteran during the time of his ear operation and helped him recover. She indicated that the Veteran lost his hearing in the left ear after his surgery. In a January 2008 letter, A. O., the Veteran's brother-in-law, indicated that he had known the Veteran for 30 years and had always known him to have a hearing problem. He noted that he had to speak louder than normal for the Veteran to hear him. He stated that over the years, the Veteran's hearing had become worse and that after the operation he lost his hearing. In his September 2008 substantive appeal, the Veteran reported that during service he worked as a fireman 12 hours per day, deep in the engine room, where he was surrounded by high pitched generators, continuous running motors, with exposure to these noises leaving him with ringing/chirping in his ears. In its July 2015 remand, the Board requested that an additional opinion be obtained as to whether it was as likely as not that the Veteran's bilateral hearing loss and tinnitus were related to his period of active duty. The Board indicated that for purposes of rendering this opinion, the examiner was to assume as true the Veteran's reported four year history of unprotected exposure to engine and machinery noise while serving in boiler rooms aboard ship during naval service. The examiner was also to discuss the significance of the in-service audiograms demonstrating a hearing threshold shift at 500 Hertz, with a left ear ISO puretone threshold of 20 decibels on entrance examination in August 1964, shifting to 30 decibels on separation examination in April 1968. The Veteran's competent report of experiencing hearing loss in service and since that time also had to be addressed. The opinion was to also consider, discuss, and either concur with or rebut the August 2007 nexus opinion of the Veteran's private physician, which linked the Veteran's current hearing loss to his in-service noise exposure. The requested opinion was obtained in August 2015. Following a review of the file, the examiner indicated that comparison of enlistment and separation audiometrics revealed that there were no significant in-service threshold changes in either ear (1000-6000 Hz), as a change of 10dB was not audiometrically significant and could be attributed to normal measurement error. He noted that a significant change in hearing was defined as a change greater than normal measurement error (i.e greater than 10 dB). Furthermore, there was no significant threshold shift at 500 Hertz in either ear when comparing enlistment and separation audiometrics. Therefore, it was not at least likely as not that the Veteran's hearing loss was a result of his history of military noise exposure, but more likely due to his middle ear pathology. The examiner indicated that according to The Institute of Medicine (IOM) Study (2005) "Noise and Military Service: Implications for Hearing Loss and Tinnitus", current knowledge of cochlear physiology did not provide sufficient scientific basis for the existence of delayed-onset hearing loss. Additionally, the IOM did not rule out that delayed-onset might exist, but because the requisite longitudinal animal and human studies had not been done, and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. The Board notes that the Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as ringing in the ears and loss of hearing as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran's lay statements regarding exposure to weapons fire and engine noise while in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service. The Board finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. With regard to the VA examiner's opinion that it is less likely than not that the Veteran's tinnitus is related to his period of service, while the Veteran's service treatment records do not note any findings of tinnitus, the Veteran, by his own statements, has indicated that he had tinnitus in service. The Veteran has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced recurrent tinnitus symptomatology. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As to bilateral hearing loss, as noted above, exposure to in-service acoustic trauma has been shown. The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as loss of hearing as these are observable symptoms. See Jandreau, supra; Charles v. Principi, supra. The Veteran's lay statements regarding exposure to noise in service and loss of hearing in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service. Furthermore, military personnel records also demonstrate that he was exposed to acoustic trauma. Moreover, the Veteran has submitted lay statements from individuals who have known him for many years, including his twin sister, who have reported the Veteran having had hearing problems following his return from his time in the service. The Veteran's sister specifically reported that the Veteran had indicated, since the start of his hearing problems, that it was related to his period of noise exposure in service. As to the VA examiners' opinions, the Board finds these of little probative value, as neither opinion took into account the Veteran's lay statements or the statements of his sister and brother-in-law. Furthermore, the August 2015 VA examiner did not address the opinion of the Veteran's private physician, an otolaryngologist, who indicated that the Veteran's current hearing loss was related to his military noise exposure. The Court has held service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service is not precluded if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. Given the Veteran's current hearing loss; his in-service military occupational specialty; and his in-service noise exposure, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to his period of service. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for bilateral hearing loss disability. 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