Citation Nr: 1616508 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 10-14 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that declined to reopen claims for service connection for bilateral hearing loss and tinnitus. In July 2010, the Veteran and his wife testified at a hearing before a Decision Review Officer, sitting at the RO. A transcript of the hearing is associated with the claims file. In August 2014, the Board reopened the claims for service connection for bilateral hearing loss and tinnitus and remanded the issues, on the merits, for additional development. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. FINDINGS OF FACT The evidence of record is at least in equipoise as to whether the Veteran has bilateral hearing loss and tinnitus related to active service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1112, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2015). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1110 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the favorable disposition of the Veteran's claims for service connection for bilateral hearing loss and for tinnitus, the Board finds that all notification and development action needed to fairly adjudicate these claims has been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2015). Service connection may be presumed for certain chronic diseases, to include sensorineural hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2015). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2015). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2015). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When, after careful consideration of all procurable and assembled data, reasonable doubt arises as to service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2015). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran contends that he has bilateral hearing loss and tinnitus as a result of his his military occupational specialty (MOS) as an Explosive Ordinance Disposal Specialist, which has been found by the Department of Defense to entail a high probability of noise exposure under its Duty MOS Noise Exposure Listing. See VBA Manual M21-III.iv.B.3.d (indicating that the Duty MOS Noise Exposure Listing must be considered to assess whether in-service noise exposure is established based on circumstances of service). See 38 U.S.C.A. 1154(a). In-service hazardous noise exposure is therefore consistent with the circumstances of the Veteran's duties in service. When the Veteran entered active service, an audiometric test reported on his December 1970 induction examination reflected pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 25 20 LEFT 25 20 20 30 25 The Veteran's January 1973 separation physical examination report that reflects that on audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 15 LEFT 20 15 20 15 15 August 1994, August 1996, and August 1998 Boise Speech and Hearing Clinic records note that the Veteran has a mild degree of hearing loss in the left and in the right ear. No opinion as to etiology is provided. In a February 2003 letter, the Veteran stated that post service he worked as an auto parts manager and that his recreation activities were hunting, fishing, and camping. He asserted that his hearing started to deteriorate while in service due to being exposed to frequent loud noises from the artillery and small arms fire. He suffered several acoustical traumas from being too close to artillery pieces when they were shooting and from this exposure, he immediately started having problems with severe ringing in his ears and he noticed a definite hearing loss by having people repeat things they said to him. In a February 2003 letter, the owner of Pure Tone Hearing Aid Services stated that from what he had been told by the Veteran and the testing that was performed, his hearing loss is more likely than not a result of his military services and the assignments while serving his country. The Veteran stated that he served his country with the Army from 1971 to 1973, stateside in Utah, in Explosive Ordinance Disposal. The Veteran was exposed.to large arms fire on the firing range as well as jet engines when retrieving explosives from the aircraft. The Veteran was not provided hearing protection. The Veteran has and will continue to suffer from that loss as well as a ringing in his ears for the rest of his life. His hearing condition has continued to deteriorate from the time he was discharged leaving him with a hearing loss today as well as the ringing in his ears. The owner indicated that what he stated above was his professional opinion. A February 2010 VA audiological evaluation revealed bilateral mild sloping to severe high frequency sensorineural hearing loss with excellent word discrimination. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 60 65 70 LEFT 20 35 55 70 65 Speech discrimination scores on the Maryland CNC word list were 96 percent in the right ear and 96 percent in the left ear. The VA examiner opined that the Veteran's current hearing loss is less likely than not due to active duty noise exposure as he had normal hearing for VA purposes at the time of separation. He further explained that there was in fact a slight improvement in hearing thresholds from entrance to separation. The Veteran had noise exposure in his civilian work and in his recreational activities which may have caused his hearing impairment. Furthermore, hearing loss is not documented until 1994 which was approximately 20 years after separation. The Veteran's tinnitus is less likely than not due to active duty noise exposure as there is no complaint of tinnitus in his service medical records. The examiner noted that the Veteran reported the onset to be approximately 30 years ago. This would have been after separation from active duty. A September 2014 VA audiological evaluation revealed bilateral high frequency sensorineural hearing loss with excellent word discrimination. On audiometric testing, pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 55 50 60 LEFT 15 30 55 55 55 Speech discrimination scores on the Maryland CNC word list were 100 percent in the right ear and 96 percent in the left ear. The examiner stated that his opinion was in agreement with the previous VA audiology examiner's appeal report. The examiner noted a review of the claims file, finding that the Veteran served in the Army from 1971 to 1973 in an Artillery unit performing EOD which included removing ordinance from aircraft while the engines were running. Occupationally, he reported working in a Machine Shop as a Machine Operator, and as a Parts and Service Manager in a car dealership. HPD's were used in the Machine Shop. Recreationally, he has been a hunter and does target shoot. He uses HPD's when target shooting and has used his Starkey ITE hearing aids when hunting. The VA examiner opined that it is on a less than likely basis that the Veteran's hearing loss and tinnitus were created and/or aggravated by his hazardous military noise exposure as no changes were noted in his hearing acuity during his military service. He furthered that the Veteran was discharged with normal hearing acuity, and approximately 20 years later his initial employment audio (1994) revealed a mild high frequency SNHL bilaterally which became progressively worse over the following 16 years. No reports of tinnitus were recorded in his military records. Comparison of the Veteran's induction examination and separation examination revealed no significant change. A change (improvement recorded on separation compared to "separation") was only noted in the left ear at 3000 Hz and 4000 Hz. This change can be due to inter-test variation, headphone placement, examiner technique, single or group test environment, and is the minimal amount of improvement in not noteworthy and within the normal variability for audiometric testing. Following the military, he worked as a Parts and Service Manager in an Auto Dealership without the use of hearing protection. Exposure to mechanic/auto repair noise is significant, there are no audiometric records from that time. The examiner concluded that the opinion was based upon the review of the Veteran's service records, no significant change during his service time. The examiner noted that the Veteran has a diagnosis of clinical hearing loss, and opined that his tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. He further opined that his tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure. In this case, while the Veteran's service medical records do not document the occurrence of, or treatment for, any specific incidence of acoustic trauma, hearing loss, or tinnitus, considering the circumstances of the Veteran's service, he was likely exposed to hazardous noise in service. In addition, the Veteran is competent to assert the occurrence of in-service injury. Grottveit v. Brown, 5 Vet. App. 91 (1993). Thus, the Board accepts the Veteran's assertions of in-service noise exposure as credible, and consistent with the circumstances of service. Accordingly, the remaining question is whether the current bilateral hearing loss and/or tinnitus is medically related to noise exposure during service. In this case, current hearing loss by VA standards pursuant to 38 C.F.R. § 3.385 has been demonstrated on VA examinations, and there are now contrasting opinions regarding the question of whether the Veteran's bilateral hearing loss and tinnitus are related to service. After thorough consideration, the Board finds that the evidence is in equipoise as to whether tinnitus and bilateral hearing loss were incurred in or are a result of active service. Favorable evidence in support of the Veteran's claim is that in-service noise exposure has been conceded, the Veteran's has provided competent and credible evidence in his assertions of hearing loss and tinnitus since active service, and a private examiner has provided a favorable nexus opinion. Therefore, despite the negative VA opinions, the Board concludes that the evidence is at least in equipoise that bilateral hearing loss and tinnitus are related to active service. Accordingly, by resolving all reasonable doubt in the Veteran's favor, the Board finds that bilateral hearing loss and tinnitus are related to service and service connection is warranted. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs