Citation Nr: 1218656 Decision Date: 05/25/12 Archive Date: 06/07/12 DOCKET NO. 09-27 866A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board sitting at the RO in March 2012. A transcript of the hearing is associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's experiences bilateral hearing acuity loss that meets the VA criteria for a disability. 2. The Veteran was exposed to high noise levels as an aircraft mechanic and combat aircrew member in service and to occupational construction noise after service. 3. There is a relative balance of credible lay and medical evidence both for and against the onset of degraded hearing acuity immediately after service, a continuity of symptoms after service, and medical opinions associating hearing loss with military noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal. Assuming without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran served in the U.S. Air Force as an aircraft systems mechanic including service in Okinawa, Japan and in the Republic of Vietnam. The Veteran reported that he was a member of flight crews during surveillance missions and was present when his base in Vietnam came under rocket attacks. He contends that he experiences bilateral hearing loss caused by exposure to high noise levels from aircraft engines and hostile fire. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, 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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Impaired hearing is a disability for purposes of service connection when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. However, the Court of Appeals for Veterans Claims (Court) cited a 1988 medical treatise that stated that the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A recent edition of this treatise retains the same definition. See Current Medical Diagnosis and Treatment, 162, Stephen J. McPhee et.al. eds., 47th Ed. (2008). Regarding VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Service personnel records showed that the Veteran's military occupation was aircraft systems mechanic. The Veteran served at an airbase in the Republic of Vietnam and provided credible evidence of additional temporary duty at a base in Thailand that included his participation in aviation surveillance missions over hostile areas. Several military audiometric test records noted that the Veteran had high noise exposure. The records of testing at bases in Okinawa and in the continental United States noted that the Veteran used hearing protection. Testing reports from a base in Vietnam noted that he did not use hearing protection. Therefore, the Board concludes that the Veteran was likely exposed to acoustic trauma in service. The Veteran reported to several examiners that after service he worked for construction and flower sales businesses. Service treatment records were silent for any organic ear injuries or disease. The Veteran's hearing acuity was tested on enlistment, on four occasions during service, and on discharge. For the left ear, an October 1966 enlistment test showed puretone thresholds on the left side as normal with the exception of 25 decibels at 500 Hz. In the four examinations during service, puretone thresholds on the left were occasionally 25 or 30 decibels at frequencies between 3000 and 6000 Hz but were at 25 decibels only at 6000Hz at the time of discharge in October 1970. For the right ear, puretone thresholds were normal at all frequencies on enlistment and on discharge but were occasionally at 25 or 30 decibels at frequencies of 3000 to 6000Hz in the mid-service testing. Therefore, the Board concludes that the test results show slightly degraded acuity at higher frequencies primarily during periods of time when the Veteran was working on the flight lines. The Veteran submitted records of private audiometric testing in June 1992, June 1994, and September 1997. Puretone thresholds at frequencies of 2000 Hz and higher were 40 decibels or greater bilaterally and speech recognition scores were 96 percent bilaterally on all three tests. On the latter two tests, the audiologist noted no deficits on otoscopy. Examiners noted that the Veteran was working in "sales and supply" in 1994 and in "maintenance" in 1997 but neither commented directly on the functional effects of the high frequency hearing deficiencies. The RO received the Veteran's claim for service connection in May 2006. The Veteran submitted two statements from friends who knew him during his military service. One fellow Airman noted that he worked with the Veteran on the flight line in Vietnam. Although they wore hearing protection during engine testing, the Airman noted that he observed the Veteran experiencing "hearing problems" as did others during that service. Another friend noted that in 1970 he observed the Veteran having difficulty hearing conversations with his friends in group outings. In April and May 2008, the Veteran submitted statements from his mother and three siblings who all reported observing the Veteran's increased difficulty hearing conversations starting upon his return from Vietnam and discharge after a final tour at a U.S. base. One brother noted that he worked with the Veteran in the family business (later identified as a flower sales business) and that the Veteran had difficulty hearing his conversation at a distance of six to eight feet. The Veteran underwent three VA audiometric examinations during the period of time covered by this appeal in December 2006, June 2009, and January 2012. The examinations were performed by different VA audiologists. In 2006 and 2012, audiometric testing showed puretone thresholds at 40 decibels or greater at every frequency in both ears. In all three tests, speech recognition scores were significantly less than 94 percent. All examiners noted the Veteran's reports of tinnitus, and none noted any organic ear injuries or disease. Therefore, the Board concludes that the Veteran has bilateral hearing acuity loss that meets the VA criteria for disability. In December 2006, a VA audiologist noted the Veteran's reports of exposure in service to aircraft engine testing and that he often removed his hearing protection to check for system leaks while the engines were running. The audiologist also noted that the Veteran worked after service in construction without hearing protection and in other businesses with no noise exposure. The audiologist noted a review of the military audiometric test records and concluded that there were temporary threshold shifts at higher frequencies during service but that hearing was normal at enlistment and at discharge. The audiologist concluded that the Veteran's tinnitus was related to noise exposure in service but that the hearing loss was not related to the same noise exposure because the discharge testing showed normal hearing acuity. The audiologist did not comment on functional impairment. In June 2009, a VA audiologist noted that another VA clinic issued bilateral hearing aids in June 2007. The audiologist did not have the claims file for review but noted the Veteran's report of noise exposure from aircraft in service and occupational exposure after service for ten years as a construction worker. The audiologist did not have the in-service test results for review. The Veteran reported the onset of hearing loss was concurrent with the onset of tinnitus. The audiologist concluded that based on the Veteran's reported military noise exposure and the configuration of the hearing loss, both tinnitus and the hearing loss were a result of the military noise exposure. In January 2012, a third VA audiologist noted a review of the claims file including the in-service test results and the two previous VA examinations. The audiologist did not comment on the private testing in the 1990s. The audiologist noted the Veteran's report of difficulty hearing and understanding conversations in person and on the telephone and that he frequently becoming angry because he had to ask for repetitions and felt that others held him to be unreliable because of the disability. The audiologist noted his agreement with the VA examiner in 2006 and concluded that the Veteran's hearing loss was not related to noise exposure in service because the discharge testing was normal and because the Veteran reported significant post-service occupational exposure from compressors, jackhammers, and other construction equipment with only occasional use of hearing protection. The audiologist placed less weight on the opinion of the 2009 VA examiner because he did not review the claims file and relied only on the Veteran's reported noise exposure. In a March 2012 Board hearing, the Veteran described his military duties and experiences and reported that hearing protection was not possible during some maintenance procedures, airborne surveillance missions, and when under rocket attacks. The Veteran reported that he was not aware of hearing loss until after he stopped work on aircraft and began compensating for the disability by reading lips. He reported that he first sought hearing aids at a VA clinic in 2006 but did not discuss the testing in the 1990s. The Board concludes that there is credible lay and medical evidence both for and against the onset of hearing loss in service, a continuity of symptoms after service, and a relationship of the Veteran's hearing acuity disability to noise exposure in service. The Veteran's description of noise exposure from aircraft and combat operations is competent and credible as it is based on his personal experience, is consistent with his military duties, and was noted in the service audiometric testing. To the extent that the examiners accurately noted the Veteran's reports of construction work after service, the Board concludes that the Veteran is also competent and credible to describe this exposure. Further, the Board concludes that the lay statements from two friends and four family members is also competent and credible because it is based on personal observations that can be made by lay witnesses and is not otherwise contradicted in the record. The Board places probative weight on the credible lay evidence from six observers that showed the onset of some level of hearing dysfunction shortly after service and thus a continuity of symptoms since service. Regarding the credibility and probative weight of the in-service, private, and VA medical reports and opinions, the Board concludes that there is evidence both for and against the onset of hearing loss in service and a relationship of the current disability to service. The private and VA audiometric testing is competent and credible as appears to have been performed by qualified audiologists even though the licensure status is not of record. The private examinations established that the Veteran had a hearing disability at least by 1992 but provided no opinions on its origin. Although only the 2006 and 2012 examiners noted a review of the service testing, all described the in-service and post-service noise exposure consistently with the record and the Veteran's reports. Contrary to his opinion, the Board will not assign less probative weight to the 2009 opinion on the basis of a lack of review of the claims file. However, the Board does assign some greater weight to the opinions of the 2006 and 2012 examiners because they both noted the test results in service and concluded that a normal test at discharge was a valid basis to conclude that the current hearing loss was not related to the noise in service. Notably, both acknowledged that tinnitus was related to noise exposure in service and did not address how noise caused one form of hearing disability but not the other. Furthermore, both acknowledged the temporary shifting of puretone thresholds in service indicating some effect of service noise on acuity. Although the 2009 examiner did not indicate an awareness of a normal test at discharge, this examiner's opinion warrants some weight as he concluded that both tinnitus and hearing loss had a common origin from noise exposure in service. Further, as the lay observers noted the Veteran's hearing difficulties while working at the family flower business prior to his work in construction, the latter exposure may have been an aggravating but not causative factor. The Board concludes that there is a relative equal balance of credible lay and medical evidence regarding the onset of gradual hearing degradation in service, a continuity of symptoms after service, and mixed opinions on the etiology of the disorder. Therefore, resolving all doubt in favor of the Veteran, the Board concludes that service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Lewinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs