Citation Nr: 1634417 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 11-28 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York 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 ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for the claimed disabilities. In an October 2011 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in February 2014, he withdrew his hearing request. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes. 2. Symptoms of bilateral hearing loss were noted in service and have been continuous since service separation. 3. The evidence is in equipoise on the issue of whether the Veteran's tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. 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 reasonable 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). In this case, 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. The Board will 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). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). 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). Bilateral Hearing Loss The Veteran contends that his hearing loss was incurred while serving in Vietnam. He states that his duties include convoy escorts, and that he was a gun jeep driver, in which there was an M60 machine gun mounted in the back of the vehicle. When the gun was fired, sound would reverberate through the inside of the jeep and the Veteran could not hear for days afterward. The Veteran notes that he saw a private audiologist 15 years ago and was told that he needed hearing aids. However, he could not purchase them at that time, and does not remember the name of the audiology office or its location to obtain records. See the October 2010 statements; November 2010 authorization to release information to VA; October 2011 VA Form 9. The Veteran currently has a bilateral sensorineural hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. In December 2010, the Veteran was afforded a VA audiological examination, which reflected the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 60 70 65 LEFT 0 0 55 70 60 The Veteran's speech recognition score using the Maryland CNC Test was 94 percent in the right ear and 94 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. STRs indicate that in a February 1968 service enlistment examination, the Veteran's auditory puretone thresholds were as follows, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -10 -- -5 LEFT 0 -5 -5 -- -10 The available STRs are silent for complaints, diagnosis, or treatment of hearing loss during service. The Veteran's October 1969 separation examination reflected the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 0 5 LEFT 5 0 0 0 5 Thus, neither ear demonstrated the criteria of 38 C.F.R. § 3.385 to be considered a hearing loss disability at the time the Veteran separated from service. See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels). However, the Veteran is competent to describe being exposed to loud noise, such as those caused by vehicles and machine guns. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are also credible because they are confirmed by the circumstances of his service. The Veteran's DD Form 214 that indicates that his military occupation was policeman, he had service in Vietnam, and received, among other decorations, a Vietnam Service Medal, Vietnam Campaign Medal, and a Bronze Star Medal. For these reasons, the in-service injury of acoustic trauma to both ears is established. The December 2010 VA audiometric examination report indicates that the examining audiologist opined that it was less likely as not that the bilateral hearing loss was attributable to the Veteran's military noise exposure. The basis for the examiner's opinion was that the Veteran's hearing was within normal limits bilaterally upon separation from active service. The examiner also noted that the Veteran worked for 21 years after service as a police officer and qualified yearly for firearms, although he used ear protection. In other words, the opinion was based at least in part on the lack of treatment records for these disabilities and the "normal" audiometric results that were reported at entrance and separation from service. However, in Hensley v. Brown, the Court explained that the failure to meet VA's criteria for hearing loss at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. 5 Vet. App. 155, 159-60 (1993). However, the Board has also considered the provisions of 38 C.F.R. § 3.303(b) and finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service. In this regard, despite the absence of documented post-service treatment related to the hearing loss for many years, the Veteran has provided competent and credible testimony as to continuous decreased hearing. see also Buchanan v. Nicholson, 451 F.3d 1331 Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of disability even where not corroborated by contemporaneous medical evidence). Although the October 1969 service separation examination shows that the Veteran did not have any hearing loss for VA purposes upon separation from active service, the Veteran reported noticing decreased hearing during service. Additionally, Retired Major R.W. provided a statement that described that once in Vietnam the Veteran did not hear an order and went missing for a short period of time. Furthermore, the Veteran has stated that the hearing loss continued since service. His statements are corroborated by other lay statements of record. Specifically, the Veteran's spouse, M.M., stated that when she met the Veteran shortly after his return from Vietnam, he was hard of hearing and she frequently had to repeat herself; and the Veteran's brother, P.M., stated that after the Veteran returned from Vietnam, he would often have trouble hearing people, particularly in a crowd of people. The Veteran further indicated that he saw an audiologist 15 years before filing his claim for service connection and was told he needed hearing aids. There can be no doubt that further inquiry and record development could be undertaken with a view towards development of these claims. Specifically, the Board could seek further record requests from the Veteran's private audiologists that treated him post-service. However, under the law, 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); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the Veteran has competently and credibly testified that he experienced symptoms of decreased hearing acuity during service that has continued until the present day. The Veteran's lay statements and the lay statements provided by his friends and family may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303 (a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."; see 38 U.S.C. § 1154 (a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). His hearing loss eventually was diagnosed by a medical professional and the record reflects his bilateral hearing loss meets the thresholds required by VA under 38 C.F.R. § 3.385. The Board finds the Veteran's assertions of the onset of bilateral hearing loss during service and his reports of bilateral hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma, and current diagnosis, are sufficient to place in equipoise the question of whether the current bilateral hearing loss was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of bilateral hearing loss service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303 (b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Tinnitus The Veteran contends that he has had a ringing in his right ear since discharge from service due to the M60 machine gun mounted on jeeps. See the December 2010 statement. There is competent evidence that establishes that the Veteran currently has tinnitus. The December 2010 VA examination report indicates that the Veteran reported having right ear tinnitus. The Veteran is considered competent to report the observable manifestations of his tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a Veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board finds that the threshold element for service connection, a current disability, has been established. In the December 2010 VA audiological examination report, the examiner opined that the Veteran's tinnitus was not at least as likely as not that the tinnitus is related to the Veteran's hearing loss or to noise exposure during his military career because his hearing was well within normal limits at the time of discharge. The Board finds the Veteran's statements to be competent and credible. He is competent to describe observable symptoms such as ringing in the ears. 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, the Veteran was a policeman in service, and an in-service injury of acoustic trauma to both ears has been established. The Board also finds the VA examiner's opinion to be competent and credible. As such, the Board finds the evidence is in relative equipoise as to whether the Veteran's tinnitus is as likely as not due to exposure to excessive noise levels in active service. See 38 C.F.R. §§ 3.303 (b), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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