Citation Nr: 1802109 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-17 825 ) 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 disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and the Veteran's wife ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a video hearing before a Veterans Law Judge in August 2017; a transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss is due to the Veteran's exposure to hazardous noise levels during active service. 2. Tinnitus had an inservice onset. CONCLUSIONS OF LAW 1. Bilateral sensorineural hearing loss disability was incurred in wartime service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. Tinnitus was incurred in wartime service. 38 U.S.C. § 1110 (2017); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this decision, all issues being decided by the Board are being granted and any discussion regarding the duties to notify and assist is not necessary. Any error in these duties would not be prejudicial to the Veteran and is therefore harmless. Service Connection The Veteran contends his hearing loss and tinnitus are due to exposure to noise from a howitzer in March 1967 during a training exercise. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as organic disease of the nervous system (including sciatica) are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 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, however remote, are service-connected unless clearly attributable to intercurrent causes. C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hearing Loss Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since then, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Therefore, in order to facilitate data comparison, the ASA standards examinations have been converted to ISO-ANSI standards. For ISO conversion, the Board added (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; (+5) at 4000 Hertz; and 6000 Hertz (+10). Per VA policy, hearing examinations dated from January 1, 1967 and December 1970 is considered under both ASA and ISO-ANSI standards. The ASA results are the figures on the left of each column and ISO-ANSI are noted in parentheses. The scores for the Veteran's service examinations, in parentheses, and pure tone thresholds in decibels, were as follows: January 1966 entrance examination HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 (20) 0 (10) 0 (10) 0 (10) 5 (10) 15 (25) LEFT 5 (20) 0 (10) 0 (10) 0 (10) 15 (20) 15 (25) June 1967 examination HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 (15) 0 (10) 0 (10) n/a 15 (20) 15 (25) LEFT 0 (15) 5 (15) 0 (10) n/a 20 (25) 10 (20) January 1969 Separation examination HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0(15) 0 (10) 0(10) n/a 0(15) n/a LEFT 0(15) 0 (10) 0(10) n/a 0(15) n/a The January 1969 separation examination noted normal hearing. In the January 1969 Report of Medical History, the Veteran did not report a history of hearing issues. A VA examination in September 2010 found the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 70 70 75 LEFT 35 35 35 50 55 Speech recognition was 70 percent in left ear at 85 dB HL and 94 percent in right ear at 75 dB HL. As a result, the Veteran has bilateral hearing loss disability per VA regulations. The assessment was "moderate sensorineural hearing loss right ear, and severe sensorineural hearing loss left." The Veteran noted that the howitzer was fired on his left side during a training exercise. The Veteran's lay statements are credible for purposes of establishing incidents of acoustic trauma in active service. The Veteran's service treatment records do not document the occurrence of, or treatment for, any specific incident of acoustic trauma. However, the Veteran is competent to assert the occurrence of an in-service events, to include in-service noise exposure. The Veteran, even as a layman, is competent to state that he was exposed to acoustic trauma in active service during a training exercise. His statements refer to his first-hand knowledge of a factual matter. The Board finds that he likely was exposed to levels of hazardous noise during service. Thus, the Board accepts the Veteran's assertions as credible and they are entitled to probative value. 38 C.F.R. § 3.303. The remaining question is whether the Veteran's hearing disability is due to service. There are two opinions of record, the September 2010 VA opinion and private opinion from the Veteran's treating doctor and audiologist. While the September 2010 VA opinion noted that "[b]ased on the [V]eteran's report and documents in the C-file (DD-214 and other documents in C-file) it is reasonable to assume the veteran was exposed to hazardous noise levels while in service," the examiner found the Veteran's separation examination in January 1969 showed hearing thresholds within normal limits. Therefore, the examiner found that it was less likely than not that bilateral hearing loss was due to service. In September 2017, the Veteran's private audiologist (BC-HIS) and a doctor of audiology provided an opinion noting the hearing issues. They noted the Veteran's hearing thresholds in his January 1966 entrance examination showed "extremely good hearing." They also stated that the June 1967 hearing examination "shows normal hearing although the areas of 4000 and 6000 Hz may have still been showing a temporary threshold shift from the March exposure." They noted that the January 1969 separation examination was normal, but did not record the 6000 or 8000 Hz thresholds. They stated that the Veteran's hearing threshold could remain normal for a few years after trauma before hearing loss started to occur and that threshold could very (by 5-10 dB) due to a variety of factors, including human error. They noted that the Veteran had delayed seeking treatment until forced by his family due to hearing loss. They reviewed prior private records dated from the past 9 years and noted "gradual decline in all your threshold from low frequency to high frequency, with typical high frequency noise exposure showing first." Based on the Veteran's reports, the service treatment records, and that the Veteran, post-service worked, in a quiet work environment, the private medical professionals noted "that it is at least as likely as not that your current hearing loss is related to in-service noise exposure." Both opinions were by medical professionals and are therefore competent. The Board gives more probative value to the private medical opinion, which correctly points out that threshold hearing loss above the 4000 Hz range was not reported on the separation examination. Additionally, the Board notes that the Veteran's hearing test during January 1969 separation examination noted "normal" hearing when compared to the previous two examinations, which showed some slight hearing loss. See August 2017 Board hearing (noting that the Veteran had some slight hearing loss in prior service examinations with no hearing loss noted at the separation examination). The Board gives the benefit of the doubt to the Veteran. Therefore, the September 2010 VA opinion based on the Veteran's separation examination is to be given less weight compared to the private opinion. The private opinion noted possible error and other reasons that may cause hearing thresholds to appear normal during the separation examination and that hearing loss may not manifest for several years and may not appear on testing immediately after hearing trauma. In essence, the private audiologist found that the Veteran's most significant exposure to acoustic trauma occurred during active service, which is consistent with the Veteran's testimony. Accordingly, the Veteran was exposed to acoustic trauma in active service and has a current diagnosis of bilateral sensorineural hearing loss, and there is a probative medical opinion linking an event in service to a current disability. Therefore, the Board finds that bilateral sensorineural hearing loss had its onset in active service. Tinnitus The Veteran contends that the onset of his tinnitus was during active service. He testified that he first noticed the ringing in his ears before his separation from active service after traumatic noise exposure. He later was diagnosed with tinnitus. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Only one of the two medical opinions discussed tinnitus. During a September 2010 VA examination, the Veteran complained of tinnitus and described it as have started in service in the same event in March 1967. The examiner opined that the Veteran's tinnitus was as likely as not a symptom associated with hearing loss. Given the nature of the disability, the Veteran's credible lay statements, and the September 2010 VA opinion that attributes the Veteran's tinnitus to his service connected hearing loss, the Board finds that the Veteran's tinnitus is the result of disease or injury incurred in service. Accordingly, service connection is warranted for tinnitus. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs