Citation Nr: 0813305 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-26 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from December 1942 to December 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2008, the veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT Giving the veteran the benefit of the doubt, the objective and probative medical evidence is in equipoise as to whether his bilateral hearing loss is attributable to exposure to acoustic trauma experienced during active service. CONCLUSION OF LAW Resolving the doubt in the veteran's favor, bilateral hearing loss was incurred during active military service. 38 U.S.C.A. §§ 1110, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which substantially amended the provisions of Chapter 51 of Title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007)). VA has long recognized that the Department has a duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.103(a) (2002). The changes in law have amended the requirements as to VA's development efforts in this, and other pending cases, modifying and clarifying VA's duty to assist a claimant in evidentiary development. See VCAA, supra. See generally Holliday v. Principi, 14 Vet. App. 280 (2001). In addition, VA has published regulations to implement many of the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007)). In view of the favorable disposition of this appeal, discussed below, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under the VCAA. Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), at held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In a March 2006 letter, the RO provided the veteran with notice consistent with the Court's holding in Dingess/Hartman. Further, in the instant case, although the veteran's service connection claim is being granted, no disability rating or effective date will be assigned and, as set forth below, there can be no possibility of prejudice to the veteran. As set forth herein, no additional notice or development is indicated in the veteran's claim. The RO will provide appropriate notice as to the rating criteria and effective date to be assigned prior to the making of a decision on that matter. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Factual Background and Legal Analysis According to 38 U.S.C.A. § 1110, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. In the case of sensorineural hearing loss, service incurrence may be presumed if the disease is manifested to a compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 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 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 at 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. Even though disabling hearing loss is not be demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al., eds., at 110-11 (1988)). See also 38 C.F.R. § 3.385, discussed infra. The veteran contends that service connection should be granted for bilateral hearing loss. In his written statements and oral testimony in support of his claim, including in January 2008, he described exposure to acoustic trauma from noise during nearly a year of aviation cadet and pilot training, and then as a flight traffic clerk in service. In his August 2006 written statement, he said that his hearing loss was due to his having scarlet fever in 1943 and indicated that he was dropped from the pilot program in 1944 for being unable to communicate well enough while flying because of his hearing loss. The veteran testified that he had normal hearing when he entered pilot training ground school where he flew hypercube planes for several months that exposed him to noise as they were very powerful planes. (See hearing transcript, page 24). During this phase, he said that he had scarlet fever that affected his sight and may have compromised his other senses (Id. at 8-9). Then, he went on to train on "primary trainer planes" that had open cockpits and were "very, very noisy" (Id. at 24). In the next training phase, the veteran said that he flew noisier and more powerful planes that had closed cockpits. He said ear protection was not provided at any time and helmets were not always worn (Id. at 27). During advanced training, the veteran said he flew a twin engine trainer that was a closed plane with a co-pilot whom he was unable to hear read the checklist. After nearly a year of training, he was eliminated from the pilot program due to this difficulty. The veteran also said he had a buzzing or ringing in his ears after a period of flying, especially while in open cockpits (Id. at 29). Thereafter, he said he worked as a flight traffic clerk. After discharge, while studying in college, he said he had some difficulty hearing others (Id. at 30). He said he taught school for nearly thirty years after service. Service medical records indicate that, when examined for enlistment into the United States Air Force Enlisted Reserve, in December 1942, the veteran's hearing acuity was 20/20 in each ear and an ear abnormality was not found. The records indicate that the veteran was hospitalized for treatment of scarlet fever in 1943. When examined for discharge in December 1945, the veteran's hearing acuity on the whispered voice test was reported as 15/15 in each ear and an ear abnormality was not reported. The veteran's separation record from the United States Army indicates that he was a flight traffic clerk, serving as a passenger handler aboard aircraft, with experience with C-54 and C-87 aircraft, and was responsible for cargo loading. It was noted that he had eleven hundred logged flying hours in the Pacific theater of operations. It was also noted that he was an aviation student and completed "C.T.D." pre-flight, primary, and basic pilot training. Post service, in an April 1946 unappealed rating decision, the RO denied the veteran's claim for residuals of scarlet fever. In July 2005, the veteran, who was 81 years old, underwent VA audiology examination. He gave a history of longstanding, gradual hearing loss over several years. He described exposure to acoustic trauma in service for over three years while in the United States Air Force, and said nearly a year of that was as a piston plane pilot. The veteran indicated that he failed a check system because he could not hear the instructions. He denied occupational noise exposure and said he worked as a school teacher. Test results showed that the veteran evidently had a hearing loss as he was noted to be a candidate for hearing aids. A list of the veteran's medical problems indicates that, in September 2005, the audiologist reported that the veteran had sensorineural hearing loss. In August 2006, the veteran was examined by W.E.S., Jr., M.D., an otolaryngologist. The veteran reported that he was exposed to both chronic loud noise and acoustic trauma in service during World War II. It was noted that results of an audiogram performed at the time demonstrated a speech reception threshold of 20dB in the right ear and 30dB in the left ear with 100 percent speech discrimination in each ear. The veteran said he had difficulty hearing in crowds. Audiogram findings, in pure tone thresholds, in decibels, were apparently as follows: HERTZ 500 1000 2000 3000 4000 RIGHT - 15 40 60 85 LEFT - 25 40 80 90 Upon clinical examination, the impression was bilateral high frequency sensorineural hearing loss. Dr. W.E.S. advised the veteran to protect himself against both chronic loud noise and acoustic trauma due to the fact that noise-induced hearing injuries are accumulative through one's lifetime. The medical specialist said "[t]his can be concluded that if the patient were exposed to either chronic loud noise or acoustic trauma as frequently occurred in the military, during wartime situations, this patient has likely been impacted adversely from such exposers". In February 2007, the veteran was reexamined by the VA audiologist who examined him in July 2005. According to the examination report, the examiner reviewed the veteran's medical records. It was noted at this time that the veteran was in the U.S. Air Force for more than three years, including pilot training for more than one year. He estimated that he logged approximately 150 flight hours during that training (on piston engine and single and twin engine aircraft). He said that after his release from pilot training, he worked as a flight traffic clerk for the duration of his enlistment that required him to be in or near aircraft almost daily, in charge of cargo and passenger sections of C-54 and B-87 aircraft. He denied a history of post service occupational and recreational noise exposure. Audiogram findings, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 65 90 LEFT 30 45 90 90 The pertinent diagnosis was mild to profound sensorineural hearing loss in each ear. The VA audiologist noted Dr. W.E.S.' August 2006 record, described above, and commented that the "type, degree and configuration of [the veteran's] hearing loss is consistent with the type of loss that can be seen secondary to acoustic trauma but could also have presbycusic causative factors. There is no documented evidence that hearing loss existed in the service (either secondary to scarlet fever or noise trauma) or within one year of separation". She said that "stating an opinion as to the exact causative factor(s) for [the veteran's] hearing loss cannot be done without resort to mere speculation". In February 2008, the veteran was again reexamined by the VA audiologist who conducted the 2005 and 2007 audiology evaluations. She noted his history of acoustic trauma from flight line noise in service and no occupational or recreational noise exposure. It was noted that hearing test results were "consistent with the type of loss that may be found secondary to acoustic trauma or presbycuses". As noted above, the veteran contends that he has hearing loss that resulted from exposure to noise during service. During the hearing held in January 2008, he recounted exposure to loud noises from pilot training and flight line work. The veteran's service records indicate that had over eleven hundred logged flying hours in the Pacific theater of operations and also worked as a flight traffic clerk aboard aircraft. Therefore, his reports of exposure to loud noises in service are deemed credible. The veteran, however, is not required to show that he met the criteria of 38 C.F.R. § 3.385 at separation if he has a hearing loss otherwise shown to have begun in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In support of his claim, the veteran points to the August 2006 record from Dr. W.E.S. who said that, if the veteran was exposed to either chronic loud noise or acoustic trauma as frequently occurred in the military, during wartime situations, he "has likely been impacted adversely from such exposers". But, in February 2007, the VA audiologist said that the veteran's hearing loss can be seen secondary to acoustic trauma but could also have presbycusic causative factors and "stating an opinion as to the exact causative factor(s) for [the veteran's] hearing loss cannot be done without resort to mere speculation". It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by Dr. W.E.S., the otolaryngologist, who examined the veteran in August 2006. This medical specialist had the opportunity to examine the veteran. This examiner explained the veteran's initial symptoms and found that his currently diagnosed bilateral hearing loss was consistent with his history of noise exposure in service. As to the opinion of the February 2007 VA audiologist who diagnosed bilateral sensorineural hearing loss due either to acoustic trauma or presbycuses and said that an opinion as to the exact causative factor(s) for the veteran's hearing loss cannot be done without resort to mere speculation, the Board finds that, given Dr. W.E.S' professional expertise, his opinion carries more weight than that of the 2007 VA audiologist. The Board finds Dr. W.E.S.' opinion more persuasive as to whether the veteran's currently diagnosed bilateral hearing loss is related to his active military service. As well, the Board notes that when the veteran was re-examined in February 2008 by the VA audiologist who examined him in 2007, she again reported that hearing test results were consistent with the type of loss that may be found secondary to acoustic trauma "or" presbycuses. In light of the foregoing, the Board finds that the evidence of record is consistent with the veteran's contentions. The veteran's service records document that he served as a flight traffic clerk, and had over eleven hundred logged flying hours in the Pacific theater of operations. At the time of Dr. W.E.S.' examination, the veteran reported a history of significant noise exposure in service. Dr. W.E.S., an otolaryngologist, concluded that, if the veteran was exposed to either chronic loud noise or acoustic trauma as frequently occurred in the military, during wartime situations, he "has likely been impacted adversely from such exposers". Accordingly, the Board finds that the veteran has established the existence of in-service noise exposure consistent with the conditions of that time. In 2006, Dr. W.J.W. diagnosed the veteran with bilateral sensorineural hearing loss and opined that he was likely adversely impacted by exposure to such acoustic trauma. Resolving the benefit of the doubt in the veteran's favor, and without ascribing error to the action of the RO, service connection is established for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs