Citation Nr: 1613985	
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO.  14-34 645A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus, to include as secondary to bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Arkansas Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his Spouse




ATTORNEY FOR THE BOARD

N. Nelson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to September 1975.  His decorations include a National Defense Service Medal (NDSM) and a Rifle Expert Badge.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied entitlement to service connection for the claimed disabilities.  

In May 2015, the Veteran testified at a videoconference hearing before the undersigned and a transcript of that hearing is of record.


FINDINGS OF FACT

1.  The evidence is in relative equipoise on whether the Veteran's hearing loss is etiologically related to service.

2.  The evidence is in relative equipoise on whether the Veteran's tinnitus is etiologically related to service.


CONCLUSIONS OF LAW

1.  Resolving all doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015).

2.  Resolving all doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  

As the Board is granting the claims for service connection for hearing loss and tinnitus, the claims are substantiated and there are no further actions necessary on the part of VA to notify or assist.  Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim").

Law and Regulations

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for a disease first 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.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995).

Diseases of the nervous system, including sensorineural hearing loss and tinnitus, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  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.  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.  With chronic disease 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.  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). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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; 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 for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria.  Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz).  See Hensley v. Brown, 
5 Vet. App. 155, 158 (1993).  The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz 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.  

In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  See 5 Vet. App. at 157.

VA adjudicators are directed to assess both medical and lay evidence.  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a competent source.  Second, the Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  A layperson is not generally capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

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.  See generally 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.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  But see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Service Connection for Bilateral Hearing Loss

The Veteran asserts that although his military occupation was logistics operations clerk, he was exposed to significant acoustic trauma because his office was underneath the guns on a ship.  He stated that he worked on the ship for two weeks each month during his time at Camp Pendleton.  See the December 2013 notice of disagreement; May 2015 Board hearing transcript.

The Board finds that the Veteran is competent to describe being exposed to loud noise, such as that caused by gun fire.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  The Veteran's lay statements are found to be credible because they have been consistent and are confirmed by the circumstances of his service.  The Veteran's DD 214 shows that he was awarded a rifle expert badge and his service personnel record establishes that he was at Camp Pendleton and assigned to a Fleet Marine Force (FMF) during service.  For these reasons, the in-service injury of acoustic trauma to both ears is established.

The Board finds that the Veteran has current bilateral sensorineural hearing loss that meets the criteria of 38 C.F.R. § 3.385 to be considered a disability for VA purposes.  In June 2013, the Veteran had audiometric examination conducted by a private clinician.  The examination report reflects the following approximate puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
45
45
50
LEFT
20
30
50
75
95

In November 2013, the Veteran underwent a VA audiometric examination.  The examination report reflects the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
30
35
50
LEFT
20
20
40
70
80

Both the VA examination report and the private examination report indicate that the Veteran's auditory thresholds for the right ear were 40 decibels or greater at 4000 hertz, and the thresholds for the left ear were 40 decibels or greater at 2000, 3000, and 4000 hertz.  Moreover, both examinations indicate that the Veteran's auditory thresholds in each ear were also greater than 26 decibels at 2000, 3000, and 4000 hertz.  As such, the Board finds that the Veteran has a current bilateral hearing loss disability.  

The Board also finds that, in resolving all reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss is due to or related to service.  The Veteran's April 1972 enlistment examination reflects the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
10
15
LEFT
15
15
10
10
5

The Veteran's July 1975 separation examination reflects that the Veteran's hearing was tested twice on the same day.  The first test showed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
20
15
10
LEFT
80
65
70
60
50

The re-test showed the following puretone thresholds, in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
5
5
LEFT
5
5
10
5
0

The separation examination report shows that the Veteran did not have hearing loss in the right ear that qualifies as a disability for VA purposes, and it is unclear whether the Veteran had left ear hearing loss that qualifies as a disability for VA purposes.  For the right ear, no auditory threshold was 40 decibels or greater, nor were the auditory thresholds for at least three of the frequencies 26 decibels or greater.  The left ear, however, met the VA criteria for hearing loss in the first of the two hearing tests, and the record is silent for any indication of what caused the differing re-test results.  See 38 C.F.R. § 3.385; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels).  There is no medical evidence showing a diagnosis of sensorineural hearing loss in either the right ear or left ear within one year from service separation in September 1975, and the Veteran has not identified or submitted any medical evidence showing a diagnosis of sensorineural hearing loss within one year from service separation.  Therefore, service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.303(a) is not warranted. 

However, there is evidence establishing that the bilateral hearing loss is related to service.  The Veteran submitted a December 2014 letter from a private physician, Dr. L.M, of an ear, nose, and throat medical facility, who noted that audiometric testing revealed mild to moderate high frequency sensorineural hearing loss in the right ear and mild to profound high frequency sensorineural hearing loss in the left ear.  Dr. L.M. opined that the bilateral hearing loss was in part likely noise-induced.  He further noted that the Veteran had a significant history of noise exposure in the military and that it was most likely that the hearing loss occurred in the military.

There is also evidence that the Veteran's bilateral hearing loss is not related to service.  The November 2013 VA examining audiologist opined that the Veteran's hearing loss was less likely as not caused by or a result of an event in military service, on the basis that the Veteran did not have a ratable hearing loss at the time of separation from the military, nor did he have threshold shifts.

In this case, the Board finds the VA examiner's opinion and Dr. L.M.'s medical opinions to be of some probative value.  The VA examiner's opinion was offered after a review of all available records, including the Veteran's service treatment records (STRs), and both opinions were rendered after physical examination of the Veteran.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board).  

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim.  Specifically, the Board notes that the VA examiner did not discuss the first audiometric test results of the Veteran's July 1975 separation examination, and Dr. L.M. did not indicate whether he reviewed the Veteran's STRs before rendering his opinion.  However, under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993).  In this case, there is positive and negative evidence on the issue of whether the Veteran's current bilateral hearing loss is etiologically related to service.  As such, in resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted.

Service Connection for Tinnitus

The Veteran asserts that he has heard a ringing in his ears since he was exposed to gun fire on the ship.  He states that the ringing has continued ever since service.  See the May 2015 Board hearing transcript.

The Veteran is competent to describe being exposed to loud noise, such as those caused by gun fire.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  The Veteran's lay statements are found to be credible as they have been consistent and are confirmed by the circumstances of his service, as discussed above.

The Board finds that the Veteran has a current diagnosis of tinnitus.  He reported in the June 2013 private examination, the November 2013 VA examination, and the December 2014 examination by Dr. L.M. that he had a constant ringing in both ears that had been present since active duty.

The Board finds the Veteran's statements to be competent and credible.  He is competent to describe observable symptoms such as hearing a ringing sound.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The Veteran's lay statements are found to be credible as they have been consistent and are confirmed by the circumstances of his service, as discussed above.  

There is medical evidence that the Veteran's tinnitus is secondary to his bilateral hearing loss.  The November 2013 VA examiner opined that the tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is a known symptom associated with hearing loss.  In addition, Dr. L.M. noted that tinnitus was consistent with hearing loss.

As such, the Board finds the Veteran has tinnitus, which is as least as likely as not due to his bilateral hearing loss.  In resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is warranted. 


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.




______________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs