Citation Nr: 1116535 Decision Date: 04/28/11 Archive Date: 05/05/11 DOCKET NO. 09-35 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served with the Air National Guard from February 1951 to November 1982. He had periods of active duty service during this time period. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Veteran testified at a Travel Board hearing at the RO. A transcript of the hearing is associated with the claims file. 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 Bilateral hearing loss is related to service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. When VA receives a complete or substantially complete application, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010). The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. An April 2007 letter provided the Veteran with notice of the information and evidence required to substantiate his claims. The letter explained what evidence VA was responsible for obtaining and what evidence VA would attempt to obtain on the Veteran's behalf. The notice was provided prior to the rating decision on appeal, in compliance with the timing requirements set forth in Pelegrini. A September 2009 letter informed the Veteran how VA determines disability ratings and effective dates. Regarding the duty to assist, the RO made reasonable efforts to obtain the pertinent records. The service treatment records and post-service records identified by the Veteran have been obtained and associated with the claims file. The Veteran has had a VA examination. In this case, VA provided the Veteran adequate notice and assistance with regard to the claim on appeal. Even assuming otherwise, remanding for additional notification and/or assistance is unnecessary because, due to the favorable disposition of this claim, the Board's decision to proceed in adjudicating it does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). II. Analysis of Claim Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Service connection may 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 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including sensorineural hearing loss, when they are manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (2010). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease 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 (2010). The Veteran claims entitlement to service connection for bilateral hearing loss secondary to acoustic trauma. The Veteran testified that he was exposed to loud noise from jet engines as a flight line mechanic. The Veteran served with the Air National Guard from February 1951 to November 1982. Service treatment records reflect findings of hearing loss. The Veteran had an audiogram in October 1971. The audiogram noted audiometric thresholds of 25 decibels at 3000 and 4000 Hertz and 35 decibels at 6000 Hertz. No diagnosis of hearing loss was noted. An October 1977 audiogram noted findings of low frequency hearing deficiency, bilateral. An April 1981 audiogram noted audiometric thresholds of 40 or greater at frequencies of 3000 and 4000 Hertz in both ears. The Veteran had a VA examination in March 2008. The examiner noted that the claims file was reviewed. The examiner noted that the Veteran had a "whisper" screening at enlistment that was normal in both ears. An audiogram completed in October 1971 indicated normal hearing in the right ear from 500 to 6000 Hertz and a mild hearing loss at 6000 Hertz only in the left ear. Testing completed in October 1977 revealed a mild hearing loss at 3000 Hertz to 4000 Hertz only in the right ear and a mild (30-40 decibel) hearing loss at 3000 Hertz to 6000 Hertz only in the left ear. In April 1981, a mild to moderate hearing loss was observed from 3000 Hertz to 6000 Hertz in both ears. The examiner noted that, per a National Guard Retirement Credits Record, the Veteran had a total of 181 total days of active duty service from August 1951 to August 1953. The examiner noted that the Veteran's chief complaint was bilateral hearing loss. The Veteran complained of difficulties hearing in all situations. The examiner noted that the Veteran currently wears privately purchased Magnatone canal hearing aids. He stated that he had been wearing hearing aids for approximately 10 years. The examination report described the Veteran's military noise exposure. The Veteran stated that he spent most of his time working on the flight line completing aircraft maintenance and transit work. He reported he was exposed to noise from prop and jet engines. The Veteran stated that hearing protection was only available to him towards the end of his Air Force Reserves career. The examiner noted some civilian and occupational noise exposure. The Veteran stated that he worked at Cape Canaveral in quality control and maintenance indoors from 1965 to the early 1990's. He stated that he was only exposed to noise very occasionally there. He stated that he did not work close to the shuttle launch pad. The Veteran also reported that he had been a volunteer fireman for 40 years and that he continued in this line of work at the present time. The Veteran reported that he rode on the back of a fire engine, but that he was not exposed to the fire engine siren because the siren noise was directed to the front of the vehicle. The Veteran did not report any recreational noise exposure. Audiometry testing revealed bilateral hearing loss as defined by § 3.385. The examiner noted that the results of the audiological evaluation revealed a sensorineural hearing loss. The examiner opined that the Veteran's current hearing loss is not caused by military noise exposure. The examiner explained that the Veteran passed a whisper hearing test on enlistment. The examiner noted that "whisper" tests are not considered valid measurements of hearing, since they are not frequency specific and do not assess the higher frequencies. The examiner noted, however, that the Veteran's claims file also contained three frequency specific hearing tests from 1971 to 1981 and that testing completed during that time frame indicated a mild hearing loss at 6000 Hertz in the left ear only in 1971, mild hearing loss in the higher frequencies only in both ears in 1977, and a mild to moderate hearing loss in the higher frequencies only in both ears in 1981. It was noted that the Veteran reported military noise exposure and individuals who are exposed to high levels of noise can present with a hearing loss in the higher frequencies. The examiner noted, however, that the Veteran served in the Air National Guard and the Air Force reserves and was only on active duty for 181 days from August 1951 to August 1953, per National Guard records. The examiner indicated that the total amount of active duty after 1953 is unknown. The examiner noted that the Veteran reported occupational noise exposure while not on National Guard and or/ Reserve duty. The examiner concluded that it is at least as likely as not that the Veteran's initial mild to moderate high frequency hearing loss in both ears, as documented in his claims file in 1981, is caused by or a result of his military noise exposure. The examiner noted that the audiological evaluation revealed a gradually sloping moderate to moderately severe sensorineural hearing loss in the right ear and a gradually sloping mild to severe sensorineural hearing loss in the left ear throughout the frequency range, 26 years after reserve duty. The examiner concluded that the Veteran's current hearing loss is not due to military noise exposure but is more likely due to the effects of civilian noise exposure, presbycusis, and/ or some other etiology. The Veteran has submitted private audiological records. A February 2010 record reflects that the Veteran was seen for audiological assessment. The private audiologist noted a substantial history of noise exposure in service. The Veteran denied otalgia, drainage and dizziness. He reported some lightheadedness when he stands up quickly, occurring occasionally. There was occasional tinnitus, unknown which side. The Veteran reported that the right ear was better than the left. He had used amplification for approximately 10 years. The audiologist opined that per patient history and audiometrics, it is felt that the current hearing loss is as likely as not a result of noise exposure while participating in the service. The Veteran submitted another report from a private physician. The Veteran was seen in February 2010 and reported a long history of hearing loss. It was noted that he has a long history of loud noise exposure and worked in the Air Force on a flight back in reserves for 30 years. He did not have a family history of hearing loss or other history of noise exposure. He had occasional bilateral tinnitus. He denied vertigo. The medical records noted that a complete audiogram evaluation showed bilaterally similar, moderate to severe, sloping sensorineural hearing loss with fair speech discrimination, slightly better on the right than the left. The physician rendered a diagnosis of noise-induced hearing loss from the military. The Board finds that the evidence is at least in equipoise with respect to whether the Veteran's current hearing loss disability is related to service. The VA examination report indicated that the Veteran's hearing loss was shown in a service audiogram as early as October 1971. The examiner opined that the Veteran's initial high frequency hearing loss was due to military noise exposure. Given the Veteran's history of service noise exposure and the VA medical opinion which indicates that the Veteran had hearing loss in service as early as October 1971, the Board finds that it is at least as likely as not that the Veteran's current hearing loss disability is related to service. Accordingly, service connection for bilateral hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs