Citation Nr: 1752897 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-44 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Air Force from January 1963 to November 1966, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO), which denied entitlement to service connection for bilateral hearing loss and tinnitus. In December 2016, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the record. The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran experienced acoustic trauma in service. 2. The Veteran is currently diagnosed with left ear sensorineural hearing loss and tinnitus. 3. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed left ear sensorineural hearing loss is etiologically related to service. 4. The evidence is at least in equipoise as to whether the Veteran's currently diagnosed tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. Resolving all benefit of the doubt in the Veteran's favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 3. Resolving all benefit of the doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Here, the RO issued preadjudicatory notice to the Veteran in April 2011 which met the VCAA notice requirements with respect to service connection for bilateral hearing loss and tinnitus. Id. VA has also made reasonable efforts to obtain relevant records and evidence needed to substantiate the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The information and evidence that has been associated with the claims file includes service treatment records, lay statements, VA treatment records, hearing testimony, and a VA examination. A VA audiology examination was provided in May 2011 to address service connection for bilateral hearing loss and tinnitus. The Board finds that the May 2011 VA audiology examination adequately addressed the Veteran's current diagnoses, and included adequate rationale for the opinions rendered based on the evidence of record and the examiner's own medical expertise as an audiologist. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4) (2017). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus as organic diseases of the nervous system, service connection will be established if the chronic disease manifested in service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (noting that VA has characterized sensorineural hearing loss as an organic disease of the nervous system, and holding that tinnitus also qualifies as an organic disease of the nervous system, at a minimum when there is evidence of acoustic trauma). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the continuity of symptoms. Fountain, 27 Vet. App. at 263-64. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system, including sensorineural hearing loss and tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d) (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. 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 Analysis The Veteran contends that bilateral hearing loss and tinnitus are related to noise exposure in service while repairing jet engines. After reviewing all the lay and medical evidence, the Board finds, in resolving all benefit of the doubt in favor of the Veteran, that the Veteran's left ear hearing loss disability and tinnitus are etiologically related to noise exposure in service. Service treatment records include service enlistment, hearing conservation and service separation audiograms, which show a shift in hearing loss during service. Prior to November 1967, audiometric results in service department records were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left in each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. In the authorized enlistment audiological evaluation in January 1963, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT -10 (5) -10 (0) -10 (0) 0 (10) 0 (5) In the authorized audiological evaluation for hearing conservation in December 1964, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) -10 (0) 5 (15) 10 (15) In the authorized separation audiological evaluation in August 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 5 (15) 10 (20) 10 (20) 10 (15) The Veteran was not diagnosed as having a hearing loss disability on separation from service as none of the thresholds exceeded 26 decibels. Service treatment records did not otherwise show complaints, treatment or a diagnosis of left ear hearing loss or tinnitus. The Veteran's DD Form 214 reflects a Military Occupational Specialty (MOS) of Auto Flight Control Systems Specialist, specialty number 32250A. In an April 2011 request for physical examination, the RO conceded the Veteran experienced moderate acoustic trauma while serving as tech maintenance on the flight line in service. On the authorized audiological evaluation during a May 2011 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 20 40 55 55 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The VA audiologist diagnosed the Veteran with left ear sensorineural hearing loss and tinnitus. In a July 2013 statement, the Veteran indicated that he was an Air Force Flight Line Technician for three years in service and was subject to jet engine noise on a daily basis. He also indicated that he was subject to mortar and artillery fire on various occasions while stationed in Vietnam. He reported that on three separate occasions, he had gone to medical to get help for his hearing loss and buzzing in his ears. In a December 2013 letter, the Veteran's private physician indicated that the Veteran had reported exposure to noise trauma while in service while working on jet engines and had visited "sick call" three times for complaints of hearing loss and tinnitus. During a December 2012 Travel Board hearing, the Veteran testified that he experience acoustic trauma in service as an Auto Flight Control Systems Specialist, the duties of which required him to work on running jet engines to check hydraulic pressure without ear protection. He indicated that the sound of the jet engines were amplified by walls built around the air craft to prevent enemy mortar fire. The Veteran indicated he had gone to sick hall three times while in Vietnam, mainly for the ringing in his ears. After service, the Veteran worked as a manager for Bell Telephone and AT&T. Initially, the Board finds that the Veteran experienced acoustic trauma in service. The Veteran's DD Form 214 indicates an MOS of Auto Flight Control Systems Specialist. The Veteran is competent to describe noise exposure in service, and the Board finds that his July 2013 statement, December 2016 Travel Board hearing testimony, and reports of medical history within a May 2011 audiological VA examination, consistently describe noise exposure from repairing jet engines as part of his duties as an Auto Flight Control Systems Specialist, and are credible. Additionally, the Board notes that the RO conceded moderate acoustic trauma in service while serving as tech maintenance on the flight line in service within an April 2011 VA examination request. The Board finds that the Veteran did not have occupational noise exposure after service separation. Within a December 2016 Travel Board hearing, the Veteran testified that after service, he worked for Bell Telephone and AT&T as a manager. The Board finds that, in affording the Veteran the benefit of the doubt, the Veteran's current diagnosis of left ear sensorineural hearing loss is etiologically related to his noise exposure in service. While May 1962 enlistment, May 1963 hearing conservation, and September 1966 separation audiograms showed that the Veteran's hearing was within the normal range, and the Veteran was not specifically diagnosed with hearing loss of either ear in active service, the Board notes that such is not required. Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Id. The Veteran's hearing upon service separation shows a shift in hearing loss during service, which was denoted by the May 2011 VA examiner, who also conceded noise exposure in service. While the May 2011 VA examiner ultimately opined that the Veteran's hearing loss was not related to service, the Board finds probative the December 2013 private medical opinion of record, in which a private physician opined that the Veteran's in-service noise exposure was the cause of his sensorineural hearing loss and tinnitus. The Veteran has provided testimony at a December 2016 Travel Board hearing where he indicated he experienced ringing in the ears and hearing loss symptoms in-service, to include having made complaints on three separate occasions to medical of his symptoms. During service, he indicated he was exposed to acoustic trauma working on jet engines, and testified that he did not use hearing protection. The Board also finds probative the Veteran's accounts of minimal noise exposure post-service. The Veteran's testimony has been consistent with statements submitted throughout the appellate period. The Board finds that the Veteran's testimony is credible, and his report of experiencing hearing loss and tinnitus symptoms is consistent with the Board's finding of exposure to acoustic trauma from working on jet engines during service. For these reasons, giving the Veteran all benefit of the doubt, the Board finds that the Veteran experienced acoustic trauma in service which caused his currently diagnosed left ear sensorineural hearing loss; therefore, the criteria for service connection have been met. The Board additionally finds that tinnitus is shown to have been incurred in service. The Veteran has credibly identified the onset of tinnitus in service during Board hearing testimony. While a May 2011 VA examiner opined that both hearing loss and tinnitus were less likely than not caused by or a result of military noise exposure, she also opined that tinnitus was at least as likely as not a symptom associated with hearing loss. The Board finds that the Veteran is competent and credible to identify the onset of tinnitus in service, and because tinnitus is shown to be related to hearing loss, for which the Board is granting service connection for the left ear, in resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for left ear hearing loss is granted. Service connection for tinnitus is granted. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C. § 5103A (2012). Within December 2013 correspondence, the Veteran's private physician indicated that the Veteran had undergone December 2013 audiology testing, the results of which showed a mild high frequency hearing loss in the right ear. To date, the Board notes that private treatment records including the December 2013 private audiogram test results are not associated with the Veteran's claims file. Additionally, within a December 2016 Travel Board hearing, the Veteran testified that he received treatment through the VA, however, the only VA treatment records within the Veteran's claims file are dated from March 2011 to April 2011. Therefore, and outstanding VA treatment records must also be associated with the record on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file private treatment records from Pasadena Ear, Nose, Throat, Hearing Care Center, to include, but not limited to, December 2013 audiology test results as conducted by Dr. M. D. and treatment provided by Dr. S.J.. Any necessary authorization should be obtained, to include any release that is required from the Veteran. All attempts to obtain these records should be documented in the claims file. If the records are determined to be unavailable, that should be noted in the record. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and his representative, and allow him the opportunity to provide such records. 2. Obtain and associate with the claims file relevant VA treatment records from April 2011 to date pertaining to the Veteran's claim for right ear hearing loss. Any necessary authorization should be obtained, to include any release that is required from the Veteran. All attempts to obtain these records should be documented in the claims file. If any of the requested records are unavailable and it is determined that further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability that is associated with the electronic record and the Veteran and his representative should be so notified. 3. After all development has been completed, the AOJ should review the claims again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs