Citation Nr: 1108797	
Decision Date: 03/04/11    Archive Date: 03/17/11

DOCKET NO.  07-10 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for left ear hearing loss.  



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

W. Harryman, Counsel



INTRODUCTION

The Veteran served on active duty from December 1961 to October 1976.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).  


FINDING OF FACT

The Veteran's left ear hearing loss cannot be reasonably disassociated from his military service.  


CONCLUSION OF LAW

Left ear hearing loss was incurred in active military service.  38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues on appeal herein.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2010).  This is so because the Board is taking action favorable to the Veteran by granting the issue at hand.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304 (2010).  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).  

In order to prevail on the issue of service connection there must be medical evidence of a current disability, medical evidence, or in some cases lay evidence, of in-service incurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability.  Pond v. West, 12 Vet. App. 341, 346 (1999).  

Impaired hearing will be 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 3 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.  

Based on the totality of the evidence, and with application of the benefit-of-the-doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran currently has left ear hearing loss which was incurred during his active military service.  The Veteran's contentions are both competent and credible that he was exposed to significant noise during service.  Specifically, the Veteran has reported that in the course of his duties as an infantryman during service, he was exposed to loud noises on a daily and constant basis.  

The service treatment records show that Veteran's left ear hearing acuity was normal on service entrance in November 1961 and on reenlistment in August 1964.  However, during the Veteran's October 1976 service separation examination, a decrease in hearing acuity in the left ear was noted.  At that time, puretone thresholds, in decibels, were as follows:  


HERTZ (CYCLES PER SECOND)

500
1000
2000
3000
4000
Right
20
20
20
*
20
Left
20
20
20
*
20

Subsequent to service, although the March 1985 VA audiology evaluation also showed no evidence of left ear hearing loss for VA purposes, puretone decibel loss on VA examination in May 2006 was noted to be at or above 30 decibels in four of the five Hertz levels specified in 38 C.F.R. § 3.385, and the VA examiner concluded that the Veteran had "a mild to severe degree [of] sensory [hearing loss] in the left ear."  

On an authorized audiological evaluation in May 2006, pure tone thresholds, in decibels, were as follows:


HERTZ (CYCLES PER SECOND)

500
1000
2000
3000
4000
Right
10
25
30
25
30
Left
15
30
30
40
50

Speech audiometry revealed speech discrimination ability of 96 percent in the right ear and of 100 percent in the left ear.  

The May 2006 VA examiner concluded that the Veteran's current left ear hearing loss was not related to his military service solely on the basis that there was no hearing loss noted on the Veteran's October 1976 service separation examination.  However, the puretone decibel thresholds documented on the Veteran's October 1976 examination report do in fact show a decrease in his left ear hearing acuity; thus, the May 2006 VA examiner's opinion as to the etiology of the Veteran's left ear hearing loss was based on an erroneous premise.  Further, even if hearing loss for VA purposes is not shown in service or at service separation, as is the case here, service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service.  See Hensley v. Brown, 5 Vet. App. 155 (1993).  The May 2006 VA examiner also failed to account for the Veteran's consistent denial of postservice occupational or recreational noise exposure, or any other environmental or familial factors.  

VA obtained another examination and medical opinion regarding the Veteran's hearing loss in February 2009.  That examiner conceded the Veteran's exposure to acoustic trauma during service.  Further, referring to the results of audiometric testing in March 1985, the examiner stated that although the Veteran's left ear hearing on that examination at frequencies from 500 Hertz to 4000 Hertz was normal, the data at 6000 Hertz and above was consistent with noise exposure.  However, the examiner then stated that "these data do not support a claim for hearing loss even 9 years after [his] leaving the service."  The examiner provided no rationale for the conclusion, which is inconsistent with the findings of the earlier examiner.  

Subsequently, the file was returned to the February 2009 VA examiner for clarification.  This examiner opined in July 2010 that the Veteran's left ear hearing loss was not caused by or a result of acoustic trauma during military service.  However, the examiner failed to explain, if the audiometric data noted for the left ear at 6000 Hertz and above on examination in March 1985 were due to the noise exposure during service even though the data at lower frequencies were normal, why the data on examination in May 2006 did not also reflect noise exposure during service.  Further, this examiner stated that there was no evidence of acoustic trauma during service, despite that same examiner's having stated in February 2009 that "the [Veteran's] loss of hearing in the very high frequency range is indicative of cochlear damage and consistent with his military related noise exposure."  

The file was returned to the VA examiner once more for further clarification.  In November 2010, the VA examiner stated it was not within his "scope of practice to determine the etiology of hearing loss and tinnitus." 

The May 2006 VA audiometric data show that the Veteran currently has left ear hearing loss meeting the criteria for hearing loss disability.  See 38 C.F.R. § 3.385.  
The Veteran's statements that he was exposed to significant noise during service are both competent and credible.  Moreover, the Board finds relevant the VA examiner's statement in February 2009 that, "the [Veteran's] loss of hearing in the very high frequency range [above 4000 Hertz, as noted in March 1985] is indicative of cochlear damage and consistent with his military related noise exposure."  Accordingly, with generous application of the benefit of the doubt rule, service connection for left ear hearing loss is warranted.  38 U.S.C.A. § 5107(b)


ORDER

Service connection for left ear hearing loss is granted.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs