Citation Nr: 1236785	
Decision Date: 10/24/12    Archive Date: 11/05/12

DOCKET NO.  10-22 244	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from December 1959 to November 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 

In June 2011, the Veteran presented testimony at a hearing held before the undersigned Veterans Law Judge (VLJ) held at the Phoenix RO.  The hearing transcript is associated with the claims folder.


FINDING OF FACT

The Veteran's currently manifested bilateral sensorineural hearing loss and tinnitus had their onset during active service.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.385 (2012).

2.  The criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks to establish his entitlement to service connection for hearing loss and tinnitus.  Service connection may be granted for disability due to disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. § 1110, 1131.  In general, 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997).  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Under VA regulations, impaired hearing is considered 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.

If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

VA recognizes that noise-induced hearing loss (caused by chronic exposure to excessive noise) is one of the most common causes of sensorineural hearing loss.  See Veterans Benefits Administration (VBA) Training Letter 10-02 (March 18, 2010).  VBA has also concluded that, while many causes of tinnitus exist which often cannot be identified, the "most common cause" of tinnitus involves sensorineural hearing loss.  Tinnitus may also be attributed to acute noise exposure.

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. 

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson is not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994).  This is a subjective symptom clearly capable of lay observation and may provide the basis for an award of service connection when there is credible evidence of continuity of symptomatology alone.  Charles v. Principi, 16 Vet. App. 370, 374 (2002). 

The facts of this case may be briefly summarized.  The Veteran served on active duty from December 1959 to November 1968.  He had a military occupational specialty (MOS) as an engineman.  He has credibly testified to military noise exposure involving being in close proximity to diesel engines and generators in small, enclosed spaces.  He has described the noise level as "getting about 5 semis and parking them in a warehouse and revving them up to about 1,100 RPs and then sit there for 6 hours and listen to that with no hearing protection."  The Board has no doubt that the Veteran had significant, unprotected noise exposure during active service.

The Veteran's service treatment records (STRs) do not reflect any complaint or treatment for hearing loss and tinnitus.  He was only afforded one audiometric examination in August 1963, which demonstrated bilateral hearing acuity of 10 decibels at 500, 1000, 2000, and 4000 Hertz, and 20 decibels at 3000 Hertz.  Otherwise, the Veteran was examined by whispered voice testing which was 15/15 bilaterally.

The Veteran filed his original service connection claim in July 2008.  On VA examination in November 2008, the Veteran reported a postservice occupation of being a mechanic for 25 years.  He described intermittent right ear tinnitus for the last 5 years.  Audiometric examination demonstrated mild to severe sensorineural hearing loss in both ears which met the standards for a current hearing loss disability per the standards of 38 C.F.R. § 3.385.  The examiner provided the following opinion:

THERE IS NO DOCUMENTATION OF EAR/FREQUENCY SPECIFIC HEARING LEVELS AT TIME OF RAD.  THEREFORE, BASED ON THE VETERAN'S REPORTED HISTORY OF SIGNIFICANT NOISE EXPOSURE BOTH DURING AND AFTER MILITARY SERVICE, IT IS NOT POSSIBLE TO DETERMINE THE ETIOLOGY OF THE HEARING LOSS WITHOUT RESORTING TO MERE SPECULATION.

SINCE THERE IS NO DOCUMENTATION OF TINNITUS IN THE VETERAN'S S[T]RS AND THE ONSET OF TINNITUS IS ONLY FIVE YEARS AGO (VETERAN SEPARATED FROM THE SERVICE IN 1968), IT DOES NOT APPEAR LIKELY THAT THE TINNITUS HAD ITS ORIGINS IN SERVICE.

In a written statement received in January 2009, the Veteran reported that his post service occupations and hobbies did not involve any acoustic trauma.  He also submitted statements from acquaintances who attested to their personal knowledge that the Veteran demonstrated decreased hearing acuity since 1966.

At an informal hearing conference in October 2009, the Veteran described hearing a sound like the "humming of bees" after engine room shifts during service.  The Veteran was afforded an additional VA examination in March 2010 to obtain a medical opinion with rationale as to whether his current bilateral hearing loss and tinnitus were the result of his military service.  The opinion dated March 2010 indicated that the Veteran's tinnitus was likely a symptom associated with his hearing loss.  The examiner also provided the following opinion:

THERE IS NO DOCUMENTATION OF EAR/FREQUENCY SPECIFIC HEARING LEVELS AT TIME OF RAD.  THEREFORE, BASED ON THE VETERAN'S REPORTED HISTORY OF SIGNIFICANT NOISE EXPOSURE BOTH DURING AND AFTER MILITARY SERVICE, IT IS NOT POSSIBLE TO DETERMINE IF THE ETIOLOGY OF THE HEARING LOSS OR TINNITUS IS RELATED TO MILITARY NOISE EXPOSURE WITHOUT RESORTING TO MERE SPECULATION.

At the outset, the Board observes that there is no evidence of record which impeaches the credibility of the Veteran and his acquaintances that he demonstrated diminished hearing acuity at the time of his separation from service.  Unfortunately, the Veteran was only afforded whispered voice testing upon separation which VA recognizes as inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure.  See VBA Training Letter 10-02 (March 18, 2010).  Thus, the Veteran's report of a persistent decrease in hearing acuity since service provides some evidence in support of the claims.  38 C.F.R. § 3.303(b).

The Board next observes that the Veteran appears to describe experiencing tinnitus in service, when he heard a sound like the "humming of bees" after his engine room shifts.  Thus, the Veteran's report of tinnitus symptoms in service also provides some evidence in support of the claim.

The opinions from the VA audiologist also attribute the Veteran's current bilateral sensorineural hearing loss and tinnitus disabilities to his history of noise exposure.  However, the VA audiologists have determined that providing an opinion would be speculative based upon the fact that the Veteran had noise exposure in military and civilian occupations.  The Veteran disputes any characterization that his civilian noise exposure history was "significant".

At this time, the Board finds that reasonable doubt exists as to whether the Veteran's current bilateral sensorineural hearing loss and tinnitus disabilities result from his military noise exposure.  The Board finds that the premise by the VA audiologists that the Veteran has a "significant" civilian noise exposure history is not supported by the Veteran's own report.  Further, any civilian noise exposure pales in comparison when considered against the extent of acoustic trauma experienced during service.  The Board gives considerable weight to the credible lay evidence of decreased hearing acuity and tinnitus symptoms that began in service.  When viewed in light most favorable to the Veteran, the Board finds that the criteria for establishing service connection for bilateral hearing loss and tinnitus have been met.  The claims, therefore, are granted.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.


ORDER

Service connection for bilateral sensorineural hearing loss is granted.

Service connection for tinnitus is granted.



____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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