Citation Nr: 1806252 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-23 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1969 in the United States Navy. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Current jurisdiction lies with the RO in Montgomery, Alabama. By way of procedural background, the Veteran originally applied for service connection for bilateral hearing loss and tinnitus in March 2009. The RO denied both claims in the August 2009 rating decision. Subsequently the Veteran filed a handwritten notice of disagreement to the denial of service connection for his "hearing problems," which is reasonably construed to include both hearing loss and tinnitus. The RO issued a Statement of the Case in June 2011 that denied service connection for both issues. In response, the Veteran filed a timely substantive appeal, via a VA Form 9, which specifically listed hearing loss as the issue on appeal. However, the Veteran also wrote "see attached" on the Form 9. Attached was a copy of the narrative from the June 2011 statement of the case for tinnitus. Giving the Veteran the benefit of the doubt, the Board construes his substantive appeal to include the denial of service connection for tinnitus. The Board then remanded the claim of service connection for bilateral hearing loss in June 2017 for further development. These claims have now returned to the Board for further appellate consideration. The Veteran waived a hearing before the Board in his June 2011 substantive appeal, via a VA Form 9. FINDINGS OF FACT 1. The Veteran experienced symptoms of bilateral high frequency sensorineural hearing loss during active service and symptoms have continued since discharge from service. 2. The Veteran's currently diagnosed tinnitus is proximately caused by the bilateral high frequency sensorineural hearing loss. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria to establish service connection for tinnitus, as secondary to bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims of service connection for bilateral hearing loss and tinnitus have been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, no conceivable prejudice to the Veteran could result from this decision and further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence shows a diagnosis of tinnitus and that the Veteran's hearing loss does meet the criteria for bilateral hearing loss disability as defined by VA regulation (38 C.F.R. § 3.385). Tinnitus and sensorineural hearing loss, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303 (b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus is an "organic disease of the nervous system" subject to presumptive service connection under 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 where there is evidence of acoustic trauma and nerve damage); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Analysis At the outset, the Board finds that the Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus. See July 2009 VA examination and audiogram. During active service, the Veteran worked on the flight deck of a Navy ship for approximately 45 months during the Vietnam War. See May 1969 DD-214. The Veteran reports being exposed to jet noise during the entire 45 months of service. See April 2009 statement. Noise exposure is supported by the Veteran's military occupational specialties. See October 1966 and January 2967 military personnel records. Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. The Veteran contends that he experienced hearing loss during service and since discharge from service. The Veteran reports he was employed by the United States Postal Service (USPS) for several months before entering active service. He was required to take a pre-employment audio examination for the USPS and states the audio test results were normal. This audio test is not of record. In addition, the Veteran stated he did not experience difficulty hearing before service and first noticed difficulty hearing in1967 after working on the flight deck as a fuel handler on the U.S.S. Ranger for two and a half years. Specifically, the Veteran reports he returned home in the middle of his tour of duty in 1967 to get married, and he had difficulty hearing his spouse. See January 2010 statement. After getting married, the Veteran returned to the U.S.S. Ranger for the remaining two years of active duty and continued to work on the flight deck. Of note, the Veteran was not afforded an audio examination at discharge from service. See April 1969 report of medical examination. The Veteran was afforded a VA examination in July 2009. The VA examiner determined that the Veteran's hearing loss was not related to his military noise exposure. Specifically as to the right ear, the examiner opined that right ear hearing loss was noted at entry into active service at 4000 and 6000 Hertz. The examiner stated that because the Veteran had significant noise exposure during service and in post-service occupational and recreational activities, that the right ear hearing loss was less likely than not related to service. The Board finds that the VA examiner's finding that right ear hearing loss was noted at entry into service is an incorrect application of 38 C.F.R. § 3.385. The Veteran had an in-service audio evaluation at entry in April 1965. It is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, and as such, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 According to the Veteran's authorized audiological evaluation conducted in April 1965, recorded pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 5 0 5 -5 35 LEFT 5 0 0 5 0 After conversion, the Veteran's entrance audiogram results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 5 40 LEFT 20 10 10 15 5 Hearing loss for VA purposes is defined as when the auditory threshold at 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, 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. The audiometric results from the Veteran's entrance audio examination for the right ear after conversion indicate right ear hearing loss for VA purposes at 4000 Hertz, while the unconverted data does not show hearing loss for VA purposes. As the type of units used to record the audiometric results are unclear, the Board will rely on the unit measurements most favorable to the Veteran's appeal. Therefore, the unconverted audiometric results in the April 1965 entrance exam are most favorable to the appeal, as it does not show right ear hearing loss at entry into service. With regard to the etiology of the left ear hearing loss, the July 2009 examiner opined that the left ear hearing loss was not related to service because there were no reported symptoms or treatment for hearing loss during service, no treatment sought until seven years after service, and hearing in the left ear was within normal limits on an August 1977 audiology testing. The Board finds that the July 2009 VA examination is inadequate. First, as to the right ear, the examiner's opinion is based on a faulty premise that right ear hearing loss was noted at entry into service, as discussed above. Second, the examiner did not address the Veteran's competent and credible reports of difficulty hearing during and ever since discharge from service. Further, the examiner did not provide and adequately reasoned rationale for his conclusion regarding the etiology of the right ear hearing loss. With regard to the left ear, the VA examiner relied on the 1977 private treatment records to support his conclusions. The examiner asserted that because the Veteran did not seek treatment until 7 years after service and because hearing in the left ear was within normal limits in August 1977, that the left ear hearing loss was not related to service. The examiner's rationale does not consider the Veteran's credible lay statements that he sought treatment in 1970, less than a year after discharge from service. It also does not account for the significant negative shift in the August 1977 audio results bilaterally when compared to the Veteran's entrance audio results. See August 1977 private audiology testing results. Additionally, the examiner's opinion that the Veteran had significant post service noise exposure in his employment and recreational activities is contextually inaccurate. The Veteran worked in parts supply and shipping at TWA in 1969 with little noise exposure. Additionally, the Veteran reports a pre-employment audio test for TWA showed that his hearing was already "not perfect." The examiner also does not discuss the Veteran's reports that when he was hired by the railroad in 1972, he was afforded an extensive pre-employment physical and told his hearing "was bad" when he was hired. For these reasons, the Board finds the inadequate July 2009 medical opinion is not probative and assigns it no weight. Weighing against the claim is a notation in the August 1977 private treatment record that the Veteran reported to his physician, Dr. T., that he experienced ringing and slight hearing loss with onset one month prior after experiencing an upper respiratory infection. Dr. T. also reported the Veteran's tympanic membrane was scarred in the left ear with fair Eustachian tube function. However, in favor of the claim, Dr. T. indicated that the Veteran had been experiencing ringing in his right ear "for a while" and the ringing in his left ear started one month earlier. Dr. T.'s impression was high frequency sensorineural hearing loss and resolving serous otitis media, also known as fluid in the middle ear. Dr. T.'s treatment plan was for audio testing for the Veteran. The most probative evidence of record is the Veteran's lay statements and timeline of events as reported by the Veteran and his spouse. See April 2009 statements. The Veteran, as a layperson, is competent to report a decline in his hearing acuity both during and ever since his active service. The Veteran credibly reports first experiencing hearing loss and tinnitus during service. Further, the Veteran's wife reported that the Veteran complained of ringing in his ears and difficulty hearing shortly after moving to Alabama in January 1970, within one year of discharge from service. See April 2009, January 2010, and August 2011 statements. Both the Veteran and his spouse report that he sought treatment for the first time post-service in 1971 or 1972. Private treatment records before August 1977 were not available. Subsequently the Veteran sought treatment for his hearing difficulty and tinnitus at other private physicians, to include Dr. T. and Dr. D.C., into the 1980's. Also of record is the Veteran's employee audiometric history from Union Foundry, which includes biannual hearing test results from November 1996 to February 2009. The Veteran was provided hearing protection while employed at the foundry and high frequency hearing loss was recorded at the time he was hired in 1996. These results show consistently worsening bilateral high frequency sensorineural hearing loss. The Veteran also provided private treatment records dated March 2002 that notes bilateral high tone hearing loss. The evidence of record is sufficient to show "continuous" bilateral hearing loss symptoms since service separation to meet the requirements of chronic disease presumptive service connection under 38 C.F.R. § 3.303 (b). The Veteran's previous consistent lay statements of bilateral hearing loss symptoms beginning in service and continuing to the present are sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of bilateral hearing loss since service separation that was later diagnosed as bilateral sensorineural hearing loss. While the VA examiner in July 2009 opined that the bilateral hearing loss was not related to service, the Board does not find that this evidence outweighs the probative lay evidence of record establishing continuous symptoms since service separation. Turning to the tinnitus, of record are two private medical opinions from Dr. R.H.H., an E.N.T., dated April 14, 2009. Dr. R.H.H. is one of the Veteran's treating physicians. This private medical opinion is based on the Veteran's reported medical history and a physical examination of the Veteran. Dr. R.H.H. notes that the Veteran has a "long term history of hearing loss and tinnitus." Further, Dr. R.H.H. reports that a private audiogram shows severe high frequency sensorineural hearing loss and that the hearing loss caused the tinnitus. The Board finds this private medical opinion as to the etiology of the hearing loss to be of no probative value as it does not provide an opinion as to whether the Veteran's hearing loss had onset or is otherwise related to service. However, the Board finds this opinion to be highly probative as to the etiology of the tinnitus and assigns this opinion high weight with regard to that issue. As there are no other medical opinions of record that negate that the tinnitus is caused by the bilateral hearing loss, the Board finds that a preponderance of the evidence supports a finding that the tinnitus is secondary to the bilateral hearing loss. For these reasons, and resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran was exposed to acoustic trauma while in service, experienced hearing loss during service, and experienced "continuous" symptoms of bilateral hearing loss since service separation in April 1969, which meets the criteria for presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.303 (b) based on "continuous" post-service symptoms. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Additionally, the evidence supports a finding that the Veteran's tinnitus is proximately caused by the bilateral hearing loss under 38 C.F.R. § 3.310. Service connection is therefore granted for the bilateral hearing loss and the tinnitus. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs