Citation Nr: 1612593 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 10-05 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 M. J. In, Counsel INTRODUCTION The Veteran had active service from November 1968 to June 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the claims in August 2013 for further action by the agency of original jurisdiction (AOJ). The claims now return for appellate review. FINDINGS OF FACT 1. The competent medical evidence, and competent and credible lay evidence, does not demonstrate that the Veteran's currently diagnosed bilateral hearing loss is related to active duty. 2. The evidence of record is in relative equipoise as to whether the Veteran's tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilteral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim for tinnitus, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). A VA letter issued in April 2009 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. The Board also concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and post service medical records has been obtained and associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's August 2013 remand, the RO obtained the records of treatment at the VA Health Care System of the Ozarks dated March 2006 and the fee-basis audiology treatment dated October 2006. The Veteran was provided a VA examination in July 2009 in connection with his claims on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The July 2009 VA examiner provided an opinion that "I cannot resolve this issue without resorting to mere speculation." Consequently, the Board requested in its August 2013 remand that a new VA examination be undertaken. This was accomplished in October 2013. The Board finds that the October 2013 VA examination report is adequate to decide the merits of the case because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report set forth detailed examination findings to include a nexus opinion, with adequate bases for the opinion. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection may also 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 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss and tinnitus (as an organic disease of the nervous system), if manifest to a compensable degree within one year after discharge from service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" 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 (2015). The Veteran asserts that he currently has bilateral hearing loss and tinnitus related to his service. Specifically, he attributes these conditions to his military noise exposure from gun fire, motors, and aircraft while serving as a medic and motor pool sergeant in the Army from 1968 to 1970, including service in the demilitarized zone in Korea from 1969 to 1970. He has reported his location of his assignment was very near combat activity. During an October 2013 VA examination, he reported military noise exposure from choppers, 105 Howitzers, diesel trucks, M60 machine guns, M16 rifles, and 45mm pistols. Form DD-214 shows that the Veteran's military occupational specialty (MOS) was a mechanic maintenance apprentice. Bilateral Hearing Loss Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss. There is a currently diagnosed bilateral hearing loss disability meeting the requirements set forth in 38 C.F.R. § 3.385. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, the Veteran's VA treatment records reflect that his primary care physician placed a consultation in March 2006 with provisional diagnosis of "hard of hearing" and complaint of tinnitus. An October 2006 fee-basis audiological evaluation report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 30 55 LEFT 15 20 20 35 75 In July 2009, a VA examination report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 50 65 LEFT 20 25 25 40 80 Speech audiometry revealed speech recognition ability of 78 percent in the right ear and 80 percent in the left ear, using the Maryland CNC word list. Additionally, an October 2013 VA examination report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 55 70 LEFT 10 20 20 40 90 Speech audiometry revealed speech recognition ability of 96 percent, bilaterally, using the Maryland CNC word list. The diagnosis was bilateral sensorineural hearing loss. The Veteran argues that he suffered noise exposure in service. His lay testimony regarding his military noise exposure is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, the Board has no reason to question the credibility of the Veteran's contentions regarding his noise exposure from gun firings, motors, and aircraft while serving in the Army as a medic and a motor pool sergeant as the claimed military noise exposure is not inconsistent with the circumstances of his service. Nevertheless, there is no indication that such exposure resulted in any injury. Regarding the etiology of the Veteran's bilateral hearing loss, the October 2013 VHA specialist provided an opinion that the Veteran's hearing loss is not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event in military service. In reaching this conclusion, the examiner noted the Veteran's subjective history of gradual progressive "muffled hearing in a group" accompanied by constant ringing in the ears, as well as his familial hearing loss history, and noise history including military and civilian occupational and recreational noise exposure. Then, the examiner noted the fact that the Veteran's MOS was considered as a high risk for probable exposure to hazardous noise per the Duty MOS Noise Exposure Listing and that his current audiometric results revealed bilateral high frequency sensorineural hearing loss that appeared to be greater than what would be expected due to aging alone. However, the examiner explained that based on current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely," according to a congressionally-mandated study by the Institute of Medicine (IOM) committee on Noise-induced Hearing Loss and Tinnitus Associated with Military Service, released in September 2005. Therefore, the examiner concluded that the Veteran's current bilateral hearing loss from 3000 to 8000 Hertz was acquired post service, given his positive history for exposure to hazardous recreational and occupational noise post service. Concerning this, the Veteran's reported civilian occupations consisted of a mechanic for an automobile dealer, a granite rock miner, a carpenter, a ministerial worker, such as pastor and teacher, and a bus driver from 1976 to present. He reported hearing protections were worn while mining and with carpentry work. Recreational noise exposure included hunting, craft woodworking tools, tractors, and gas-powered lawn equipment such as mower, weed-eater, and chainsaw. In reaching this conclusion, the examiner noted that although significant pure tone shifts were evident for all test frequencies in both ears except at 4000 Hertz in the left ear at separation compared to baseline results at enlistment, current thresholds at 500 and 1000 Hertz in the right ear and 500, 1000, and 2000 Hertz in the left ear indicated a temporary loss occurred in both ears at separation, most likely secondary to middle ear dysfunction, given the primary shifts in the low frequencies. In this regard, the Veteran's service treatment records show that at the time of enlistment in November 1968, relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 0 - 5 LEFT 15 0 0 - 10 The examiner noted healed perforation and that tympanic membrane was intact in the right ear. He denied hearing loss. Service separation examination in April 1970 revealed relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 - 20 LEFT 35 30 35 - 20 The report noted healed perforation and that tympanic membrane was intact in the right ear. The Veteran reported hearing loss on the report of medical history. The October 2013 VA examiner noted that the current threshold at 2000 Hertz in the right ear has not changed for 43 years post service, contrary to the 20 dB shift noted between 1968 and 1970; therefore, it was reasonable to infer that the pure tone result at 2000 Hertz in the right ear was also elevated at separation due to the evidentiary temporary hearing loss from 500 to 2000 Hertz in the left ear. The Board notes that the conclusion of the October 2013 VA examiner is based on a thorough review of the Veteran's claims file, and clinical examination of the Veteran, and consideration of the Veteran's reported history, and is consistent with the other evidence of record. The examiner considered the Veteran's reported history of military noise exposure. The October 2013 VA examination report indicated that the claims file was reviewed. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). For these reasons, the Board attaches significant probative value to the October 2013 VA examiner's opinion. There is no controverting medical opinion of record. In a February 2016 Brief, the Veteran's representative argued that an additional rationale needs to be obtained for the October 2013 VA's examiner's opinion that there was only a temporary hearing loss while on active duty. The Board does not agree. The examiner specifically explained that despite the significant shifts in the lower frequencies between 1968 and 1970, the Veteran's current thresholds at 500 and 1000 Hertz in the right ear and at 500, 1000, and 2000 Hertz in the left ear are better than the results in 1970, which was indicative of a temporary loss in both ears. The Board finds that it is obvious and self-explanatory that the Veteran's hearing loss shown at his separation was only temporary when his current hearing thresholds show improved results after 40 years. The examiner indicated that the temporary loss occurred in both ears at separation most likely secondary to middle ear dysfunction given the primary shifts in the low frequencies. Based on the above, the Board finds that an adequate rationale was given for the examiner's opinion. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). To the extent that the Veteran contends that his bilateral hearing loss is related to military service, his statements are not competent evidence to establish medical etiology in this case. In certain instances, lay testimony 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, susceptible of lay observation. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while military noise exposure is not disputed in this case, the question of whether the Veteran's current bilateral hearing loss was caused by his in-service noise exposure or by some other causes does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge in the field of audiology. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. Furthermore, substantial probative weight is given to the opinion of the October 2013 VA examiner who specialized in the field of audiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The most probative evidence of record shows that the Veteran's current bilateral hearing loss is less likely than not (less than 50/50 probability) caused by or result of military acoustic trauma, and the Board may not accept unsupported lay speculation with regard to medical issues. Additionally, the evidence of record does not support a finding that the Veteran's sensorineural hearing loss manifested to a compensable degree within one year following his military separation. As such, hearing loss may not be presumed to have been incurred in service as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Tinnitus In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus. Service treatment records are silent as to any complaints or findings of tinnitus. However, service personnel records show the Veteran's MOS during service is considered as a high risk for probably exposure to hazardous noise. The record reflects that the Veteran was seen for an initial VA examination in July 2009. He complained of current bilateral tinnitus and reported that he first noticed it around 1969 to 1970 while on active duty, although he did not recall any specific incident. Similarly, during the October 2013 VA examination, the Veteran reported the onset of tinnitus was some time after the Army but between 1970 to 1973 he was working in the rock mine. He described his tinnitus as ringing/crickets. The October 2013 examiner opined that the Veteran's tinnitus is less likely as not caused by or a result of military noise exposure. In reaching this conclusion, the examiner noted that tinnitus is a symptom and can be related to auditory dysfunction, middle ear pathology, and noise exposure in additional to non-auditory factors such as medications and neurophysiological factors. The examiner further noted that service treatment records did not show any report of ear complaint or treatment for ear infection. The examiner provided an opinion that the current bilateral hearing loss is less likely than not (less than 50/50 probability) caused by or result of military acoustic trauma; hence, the Veteran's report of subjective tinnitus is less likely as not (less than 50/50 probability) caused by or result of military noise exposure. As noted above, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Tinnitus is, by definition, "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1914 (30th ed. 2003). Tinnitus is "subjective," as 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). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran's statement into question for the audiologist. Accordingly, lay testimony is competent to establish the presence of tinnitus and, if the lay testimony is also credible, service connection for tinnitus may be granted. Charles, 16 Vet. App. at 374 (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). In this case, the competent evidence of record shows current complaints of tinnitus. However, the October 2013 VA examiners provided an opinion that the Veteran's tinnitus is less likely as not caused by or a result of military noise exposure. However, the examiner provided a negative nexus opinion because the Veteran's hearing was within normal limits during service and that tinnitus was not documented in service. In this regard, the Board finds that the examiner did not provide sufficient rationale for this opinion. See Buchanan v. Nicholson, 451 F. 3d. 1131, 1336-37 (the Board may not reject a veteran's competent lay evidence regarding symptoms regarding matters, within his personal knowledge and experience, based solely upon the fact that the record fails to contain corroborating evidence.) The examiner did not address the Veteran's lay statements as to the onset of his tinnitus. In this respect, the Board finds the October 2013 VA examiners' opinion inadequate on which to base a decision. Barr, 21 Vet. App. at 311-12 (holding that "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one"). Concerning this, the Board notes that it would have been helpful had the October 2013 VA examiner brought their expertise to bare in this manner regarding medically known or theoretical causes of tinnitus in determining the likelihood that current tinnitus was caused by any incident in service as opposed to some other cause. Because the VA opinion is inadequate, the Board could remand for another opinion. However, because the Veteran's own lay testimony that he has experienced tinnitus since service is consistent with the circumstances of his service, including noise exposure, and therefore, is credible, the Board concludes that a remand is not necessary here. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Rather, the Board concludes that the Veteran's lay testimony provides an adequate basis on which to grant service connection for tinnitus now. In this regard, the Veteran has reported that he first noticed his tinnitus since service and also contends that it is a result of military acoustic trauma. See Barr, 21 Vet. App. at 307 (holding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation); see also Jandreau, 492 F.3d at 1377 (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). His testimony is consistent with evidence showing extensive noise exposure in service. In this regard, the Board concedes that the Veteran was exposed to extensive military noise, as such is consistent with the circumstances of his military service as a mechanic maintenance apprentice while in the Army. 38 U.S.C.A. § 1154(a) (West 2014). The Board further finds the Veteran's testimony that he started to have ringing in his ears while he was in service or very shortly after service to be credible, i.e., believable. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). Accordingly, based on the evidence of record, the Board finds the Veteran's lay statements are credible as to when his tinnitus began. While there is no medical evidence of record linking the Veteran's tinnitus to military service, his statements alone may be considered competent and credible evidence to make such a determination. Accordingly, resolving the benefit of the doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted, subject to the regulations applicable to the payment of monetary benefits. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs