Citation Nr: 0814828 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-00 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Robert V. Chisolm, Attorney at Law ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran had active service from January 1967 to November 1968. The case initially came before the Board of Veterans' Appeals (Board) from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which in part denied entitlement to service-connection for bilateral hearing loss. In a decision dated in May 2005, the Board determined that the issue was whether new and material evidence had been received to reopen a previously denied claim for entitlement to service-connection for bilateral hearing loss. The Board reopened this claim and denied it on the merits. An additional matter of entitlement to an initial rating in excess of 10 percent disabling for tinnitus was deferred and later adjudicated in a subsequent Board decision of September 2006 and is not part of this appeal. The veteran appealed the Board's May 2005 denial of service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court). In a decision issued in September 2007 the Court set aside the Board's May 2005 decision and remanded it for further adjudication consistent with this decision. FINDINGS OF FACT The evidence is in equipoise as to whether the veteran has bilateral hearing loss stemming from acoustic trauma sustained in combat-related service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 1154 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit 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. To establish service connection, the evidence must show that the disability at issue resulted from a disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002, and Supp. 2007); 38 C.F.R. § 3.303 (2007). The Board also points out that sensorineural hearing loss (SNHL) is an organic disease of the nervous system. Therefore, service connection is presumed if evidence shows that sensorineural hearing loss became manifest to a compensable degree (10 percent) within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). With respect to the first element of a current disability, before service connection may be granted for hearing loss, that loss must be of a particular level of severity. For the purposes of applying the laws administered by the 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 threshold 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. Even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Id. (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Turning to the facts of this case, the veteran's service medical records are silent to any reported hearing problems. The veteran's enlistment examination dated in May 1966 indicated that he had normal hearing with respect to the rating criteria, and his separation examination dated in November 1968 indicated that he had normal hearing with no defects noted on the audiometer results. The veteran's DD Form 214 and additional service personnel records and unit reports obtained reflect that he had combat related service in the Republic of Vietnam and his last duty assignment was with B Battery, 7/15 artillery. He has alleged exposure to acoustic trauma from artillery noise in his written contentions and hearing testimony from July 1996. The first indication of hearing problems in the available medical evidence is a treatment report from D. Whitt, M.D., F.A.C.S. dated in June 2000. Dr. Whitt is noted to be an ear, nose and throat (ENT) specialist, belonging to the ENT Group in Texarkana, Texas. Dr. Whitt indicated that the veteran had a long history of decreased hearing and ringing, but offered no explanation to support his conclusion. Dr. Whitt diagnosed the veteran with profound high frequency SNHL secondary to noise exposure in Vietnam with secondary tinnitus. Dr. Whitt did not indicate that he reviewed the veteran's medical records such as the November 1968 separation examination that showed no hearing loss, nor did he indicate how he came to the conclusion that the veteran's hearing loss was related to his active service. The veteran's file also included in VA treatment records dated in 2002. The treatment notes contain complaints of hearing loss, and a hearing aid evaluation, but do not contain a nexus opinion linking the veteran's current hearing loss to his active service. The veteran was given a VA medical examination in January 2003 in order to determine the etiology of the veteran's hearing loss. This was conducted by an audiologist. The examiner indicated that veteran's audio chart, c-file and medical records were reviewed. At the examination, the veteran reported being exposed to noise in service while he worked in communications and was attached to an artillery unit. The veteran also reported exposure to noise before service while hunting and after service while working in construction. On examination, the veteran's pure tone thresholds, in decibels, for the right ear were 15, 30, 70, 80, 80, and for the left ear were 15, 25, 60, 75, 75, both measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The average pure tone threshold at 1000, 2000, 3000, and 4000 hertz was 65 decibels in the right ear, and 59 decibels in the left ear. His speech discrimination was 88 percent for the right ear, and 96 percent for the left ear. Based on a review of the veteran's medical records and on the veteran's history, the examiner concluded that the veteran's hearing loss was not likely related to his active service. The examiner specifically indicated that the May 1966 entrance examination and the November 1968 separation both indicated normal hearing acuity. The veteran submitted a lay statement dated in December 2002, which indicates that the veteran has difficulty hearing and has had this problem since he came home from service. The record also contains another treatment note from Dr. Whitt, dated in July 2003. The note indicates that the veteran complained of worsening hearing loss, and that the audiogram showed a definite worsening in all frequencies of both ears. Dr. Whitt diagnosed the veteran with severe-to- profound sensorineural hearing losses with tinnitus secondary to noise expose in Vietnam, and worsening of hearing over the last three years probably due to age and genetics added to the noise exposure. Dr. Whitt again did not indicate that he reviewed the veteran's medical history and records, or offer any explanation as to why he considered the veteran's hearing loss related to his active service. The veteran submitted numerous lay statements all dated in July 2003. These statements indicate that the veteran currently has hearing problems, and that his hearing before service was normal. Finally the veteran submitted a statement from Dr. Whitt dated in October 2007 stating that he evaluated the veteran 3 times in the past 7 years for hearing loss with tinnitus. The veteran gives a history of being exposed to severe noise in the artillery while in Vietnam. Subsequent to that, he developed high frequency SNHL with ringing. He was continuing to have deterioration of his hearing caused by age, but that did not change the fact that he had high frequency hearing loss caused by his previous noise exposure. It was this doctor's medical opinion that the veteran's primary problem was severe to profound SNHL caused by exposure to noise in the Republic of Vietnam. This has caused secondary tinnitus. Applying the above criteria to the facts of this case, the Board finds that the balance of the evidence is in equipoise as to whether the veteran's bilateral hearing loss is service-connected. The evidence clearly demonstrates that the veteran currently has bilateral hearing loss disability for VA purposes. Moreover, there is no controversy in this case as to whether the veteran was exposed to noise trauma in service. Inasmuch as the record indicates that he served under combat conditions with an artillery division in the Republic of Vietnam, his account of noise exposure is credible and entirely consistent with the circumstances of his service. As a combat veteran, he is entitled to have his statements accepted. 38 U.S.C.A. § 1154(b). Furthermore there is competent medical evidence or opinion of record, which effectively links this hearing loss disability to the veteran's noise exposure experienced in service. Specifically the medical opinions obtained from Dr. Whitt in June 2000, July 2003 and October 2007 repeatedly indicate that the veteran's current hearing loss disability is related to the noise exposure he received in combat experience. Although Dr. Whitt did not review the claims file when forming his opinion, he did base it on the veteran's own assertions as to in-service noise exposure during combat related service which the veteran is competent to testify about. 38 U.S.C.A. § 1154(b). Thus the medical opinion linking the current hearing loss to such combat related noise exposure provides the needed medical nexus to link this bilateral hearing loss to service. Although the VA audiologist in January 2003 audiological examination report, is noted to have reviewed the claims file and determined that the veteran's bilateral hearing loss was not related to service, more weight is given to the opinions of Dr. Whitt, who is an ENT specialist, with more medical training and expertise as compared to audiologist. See Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the veteran, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches"). Thus, as there is an approximate balance of positive and negative evidence to support his claim for service connection for bilateral hearing loss as a result of the acoustic trauma during combat, service connection is granted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs