Citation Nr: 0710335 Decision Date: 04/10/07 Archive Date: 04/16/07 DOCKET NO. 97-04 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from June to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1996 decision of the New York, New York RO, which denied service connection for bilateral hearing loss. In a June 2004 decision, the Board denied the veteran's appealed claim for entitlement to service connection for bilateral hearing loss. In a January 2006 decision, the Court of Appeals of Veterans Claims (CAVC) vacated the June 2004 Board decision and remanded the issue for further development. FINDING OF FACT The veteran's current bilateral hearing loss is due to noise exposure in active service. CONCLUSION OF LAW Current bilateral hearing loss was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 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"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Because the claim is being reopened and service connection is being granted, no further assistance is needed to substantiate the appeal. Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection can also be established for a chronic disease, including sensorineural hearing loss as a disease of the central nervous system, first shown to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2006). If a chronic disease is identified in service and any time thereafter, service connection will be presumed. Otherwise, a continuity of symptomatology is required. 38 C.F.R. § 3.303(b) (2006). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The veteran's service medical records showed normal hearing on audiometric testing during his separation examination in November 1963. In November 1993, the veteran underwent a private hearing examination. He reported having a hearing problem for the past 10-15 years that he attributed to artillery duty during active service. He also reported working as a bartender. Audiometric testing revealed hearing loss in both ears, worse in the right. In September 1996, the veteran underwent a VA hearing examination. He reported impaired hearing bilaterally since service, and a history of noise exposure while in service. The diagnosis was hearing loss. On the authorized audiological evaluation in September 1996 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 65 100 100 100 LEFT 5 10 60 60 65 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and of 94 percent in the left ear. A December 1996 report from Audrey Eisenstadt, M.D., reflects that the veteran underwent a magnetic resonance imaging (MRI) study to evaluate decreased hearing and possible acoustic neuroma. The diagnostic impression was sinusitis with no intracranial pathology or evidence of acoustic neuroma. In December 1996, the veteran presented to Dr. Dean Berman for his hearing loss. An audiological test demonstrated hearing loss. In a January 1997 letter, Dr. Berman stated that the veteran had sensorineural hearing loss that was worse in his right ear. He concluded that the veteran's hearing loss was due to loud noise exposure. In May 2003, the veteran underwent a VA examination for hearing loss. The veteran reported a history of artillery- type noise exposure in service. He stated that he had experienced decreased hearing acuity since he separated from service. He denied any ear infections, ear surgery or any occupational noise exposure after separation from service. On the authorized audiological evaluation in May 2003 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 100 105 105 105 LEFT 35 40 65 75 70 Speech audiometry revealed speech recognition ability of 32 percent in the right ear and of 70 percent in the left ear. The examiner found that the audiological tests were inconsistent and should not be used for rating purposes. The diagnosis was bilateral high frequency hearing loss. The examiner concluded that based on the veteran's separation physical in November 1963 which documented audiometric hearing tests within normal limits, it was more likely that the veteran's current hearing loss was not related to noise exposure in service. In a February 2007 letter, Dr. Craig N. Bash indicated that he reviewed the veteran's medical records for the purpose of making a medical opinion concerning hearing loss as it related to the veteran's time in service. Dr. Bash concluded that the veteran's current hearing loss was due to the veteran's military service. Dr. Bash noted that the veteran entered the service fit for duty, had no history of ear infections and had no history of post service noise exposure as he had worked at a desk job. The veteran's medical history documented hearing loss back to at least 1978 and the veteran's current hearing loss was greater than would be expected for a patient of his age due to the normal progression of age induced hearing loss. Analysis With regard to the three elements of service connection, the veteran has a present disability as shown by all recent audiology examinations. 38 C.F.R. § 3.385. The veteran is competent to report, as he has, noise exposure in service. His report is consistent with his DD-214, certificate of discharge, which shows that he served in the field artillery. The element of an in-service disease or injury is therefore also satisfied. The remaining question is whether the there is a causal relationship between the current disability and the in- service disease or injury. There are conflicting opinions as to whether the current bilateral hearing loss is related to the veteran's active service. The February 2007 letter from Dr. Bash supports such a link. Dr. Bash concluded that the veteran's current hearing loss was due to the veteran's military service. In contrast, the VA examiner who provided the May 2003 examination concluded that it was more likely that the veteran's current hearing loss was not related to noise exposure in service. The examiner relied on the negative examination at service separation. The Court has recently held, however, that an examination was inadequate where the examiner relied on negative service medical records and did not consider the veteran's statements in rendering an opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The favorable medical opinion of Dr. Bash was based on a largely accurate history and review of the veteran's medical records. Dr. Bash did not, however, comment on the normal examination at service separation, and reported that the veteran had only had "desk jobs" while the record showed employment as a bartender. In any event this opinion is competent and does support the claim. It is at least as probative as the May 2003 VA examiners opinion. For a veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). In this case, it cannot be stated that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. Therefore, resolving reasonable doubt in the veteran's favor, the Board concludes that service connection is warranted for bilateral hearing loss. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs