Citation Nr: 1624381 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 13-25 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from June 1973 to June 1979. This appeal comes to the Board of Veterans Appeals (Board) arising from an April 2012 rating action by the Regional Office (RO) in Denver, Colorado, which denied claims for service connection for bilateral hearing loss, and tinnitus. In August 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2014 & Supp. 2015). This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's hearing loss, and tinnitus, are related to his service. CONCLUSION OF LAW The Veteran's hearing loss, and tinnitus, are related to his service. 38 U.S.C.A. §§ 1131, 5108 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he is entitled to service connection for bilateral hearing loss, and tinnitus. During his hearing, held in August 2015, he testified to the following: during service, he was exposed to weapons (rifle) fire during training, during which time he wore hearing protection that had to be removed at times. He performed duties as an office equipment technician that required him to work in a very loud room that contained switching equipment for 10 to 12 hours a day, five to six days a week, without hearing protection. He questioned the accuracy of service treatment records which indicated that he had a pre-existing hearing loss, as there was construction going on in the building when he was tested. He also asserted that he was provided with improper instructions at the time of his separation audiogram. He had ringing in his ears during service. He sought treatment for his tinnitus right after service, and was told that there was no treatment for it. The first time he "officially" sought treatment for tinnitus was in 2011. In January 2012, the Veteran filed his claims for service connection. In April 2012, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.307, 3.309 (2015). "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." VBA Manual M21-1, III.iv.4.B.12.a. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2015). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is specific evidence that the increase in disability is due to the natural progress of the disease. Id. The Veteran's discharge (DD Form 214) shows that his primary specialty title was "telephone switching equipment technician electro/mech." The Veteran's service personnel records include an entrance examination report, dated in March 1976, which includes audiometric examination report results which show that he had a greater-than 40-decibel loss at 4,000 Hz, bilaterally. The report notes high frequency hearing loss, and defective hearing NCD (not considered disabling). Given the foregoing, bilateral hearing loss was "noted" upon entrance to service. Crowe; 38 C.F.R. § 3.385. Therefore, the presumption of soundness does not attach, and need not be rebutted. See VAOPGCPREC 3- 2003, 69 Fed. Reg. 25178 (2004). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran's service treatment records include an October 1976 "physical profile serial report," which notes that the Veteran has permanent left and right ear high frequency hearing loss. The Veteran's separation examination report, dated in December 1977, shows that his ears and drums were clinically evaluated as normal. His audiometric examination results show that he met the criteria for hearing loss, as defined at 38 C.F.R. § 3.385, bilaterally. In the associated "report of medical history," he indicated that he did not have a history of hearing loss. As for the post-service medical evidence, private treatment records from WorkCare, dated between 1999 and 2002, and health care records from a Federal agency, dated between 2010 and 2011, contain a number of audiometric test results which tend to show that the Veteran met the criteria for hearing loss, as defined at 38 C.F.R. § 3.385, bilaterally. A VA audiometric disability benefits questionnaire (DBQ), dated in April 2012, shows that the examiner stated that the Veteran's claims file had been reviewed. The examiner noted the following: the Veteran reported being exposed to constant loud, clacking equipment with no ear protection, with noticeable hearing loss and tinnitus symptoms after working double-shifts. He denied recreational noise exposure. He is currently a government environmental scientist, with some limited noise exposure with hearing protection (ear plugs and muffs). There was no relevant medical history. He reported a constant high-pitched ringing or buzzing sound in both ears that varied in loudness since service. On examination, he had hearing loss, bilaterally, for VA benefits purposes under 38 C.F.R. § 3.385. The diagnosis was sensorineural hearing loss. The examiner concluded that the Veteran's hearing loss, and tinnitus, were not as likely as not (50 percent probability or greater) caused by or a result of service. The examiner explained that while it is reasonable to assume that he was exposed to some hazardous noise levels, electronic hearing testing upon entrance into service showed a pre-existing hearing loss that did not change during his service. The examiner stated that it was her opinion that the Veteran showed a moderately to moderately-severe degree of hearing loss at and above 4,000 Hz on his entrance examination report, and that upon separation from service he showed essentially the same or better results (within ear test variability). The examiner further concluded that it is at least as likely as not that the Veteran's tinnitus is associated with his hearing loss. A report from M.W., Au.D., CCC-A, of the Hearing Health Care Center (HHCC), dated in March 2013, contains charted audiometric test results which appear to show that the Veteran has hearing loss, bilaterally, for VA benefits purposes under 38 C.F.R. § 3.385. The report notes mild, steeply-sloping to severe sensorineural hearing loss AU (both ears). The audiologist states that while no definite cause of the Veteran's hearing loss can be determined, it is her professional opinion that the Veteran's hearing loss was most likely worsened beyond its natural progression due to noise exposure during military service. A trial with binaural amplification was recommended, as well as use of tinnitus-coping strategies, and use of hearing protection around hazardous noise. A lay statement, dated in March 2012, is of record. The author asserts that he is a medical specialist who served with the Veteran, and recalls that during service the Veteran complained of a noisy work environment, and hearing loss. In the years following service, he observed the Veteran's worsening hearing loss. He concluded that the Veteran's hearing loss is related to his service. The Board finds that service connection for bilateral hearing loss is warranted. The Veteran is shown to have had bilateral hearing loss prior to service, and upon separation from service. Although the Board has considered the April 2012 VA examiner's opinion, the VA examiner stated that her opinion was based on the conclusion that there was essentially no change in the Veteran's hearing during service, and this rationale is therefore insufficient under current legal authority. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). There is no other opinion of record that weighs against the claim. The March 2013 opinion from HHCC weighs in favor of the claim. The Board therefore finds that the evidence is at least in equipoise as to whether the Veteran's currently shown bilateral hearing loss was aggravated by his service, and that affording the Veteran the benefit of all doubt, that service connection for bilateral hearing loss is warranted. With regard to tinnitus, the April 2012 VA examiner concluded that the Veteran's tinnitus is associated with his hearing loss. As the Board has determined that service connection is warranted for hearing loss, service connection is also warranted for tinnitus. 38 C.F.R. § 3.310 (2015). As the Board has granted the claims in full, any failure of VA in its duty to assist could be no more than harmless error, and the Veterans Claims Assistance Act of 2000 need not be further discussed. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for bilateral hearing loss, and tinnitus, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs