Citation Nr: 1237507 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-22 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana 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 M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Gretna, Louisiana. The Veteran's claims file has since been transferred to the RO in New Orleans, Louisiana. The Veteran's claim was remanded by the Board for further development in May 2012. Thereafter, the Board referred the claim to a specialist affiliated with the Veterans Health Administration (VHA) for an additional opinion. That opinion was received in October 2012, and the opinion is sufficient on which to base a decision at this time. A copy has not been provided to the Veteran or his representative. However, given that the outcome of this decision is fully favorable to him, there is no prejudice. The issues of entitlement to service connection for cardiovascular disease (CVD), secondary to ischemic heart disease, as well as entitlement to a total disability rating based on individual unemployability (TDIU), have been raised by the record (see VA Form 21-4138, August 15, 2012), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The Board notes that the Veteran is currently service connected for coronary artery disease, associated with herbicide exposure, with an evaluation of 30 percent from July 28, 2005, and an evaluation of 60 percent from March 16, 2010. In his statement, the Veteran noted that he was unaware if CVD was secondary to ischemic heart disease, but indicated that it did not appear that CVD was contemplated when his ratings for coronary artery disease were assigned. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's left ear hearing loss had its onset in service or is otherwise shown to be etiologically related his period of active service. CONCLUSION OF LAW Left ear hearing loss was incurred in or the result of active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2011). In the instant case, the Veteran's claim for service connection for left ear hearing loss is granted herein. As such, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. Service Connection The Veteran claims that his current left ear hearing loss is etiologically-related to his period of active service. He contends that he was a weather observer for his first 10 years of service, which involved service on the flight line with no hearing protection. He endorses exposure to noise from jet aircraft, as well as exposure to mortar fire during his tour in Vietnam. The Veteran insists that he reported left ear hearing loss at separation, and that his hearing acuity has progressively worsened. Right ear hearing loss is presently service-connected. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). 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 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 (2012). The Board points out, however, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The in-service hearing evaluations discussed below appear to have been conducted using the ASA standards. Therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards. For ISO conversion, the Board will add (+15) (+10) (+10) (+10) (+5). During his period of active service, the Veteran's service treatment records are silent as to complaints or a diagnosis of left ear hearing loss. His service enlistment examination indicated that his hearing was 15/15 by whispered voice testing. However, when he was examined in July 1964, puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) -10 (0) 5 (15) 10 (15) Testing in October 1965 revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) 0 (10) 0 (10) 15 (20) Testing in January 1972 puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 5 5 30 At the time of his separation examination, some hearing loss (threshold above 20 dB) was again recorded at 4000 Hz. The October 1975 examination revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 5 5 25 Post service, the Veteran was afforded a VA audiological examination in July 2006. Bilateral hearing loss was diagnosed. In the subsequent opinion, the Veteran's October 1975 separation examination was noted, which indicated a 25 dB notch at 4000 Hz in the left ear, with all other frequencies normal. However, the opinion only addressed the Veteran's right ear. An additional VA audiological examination was provided in July 2012 to address his left ear hearing loss. At that time, puretone thresholds for the left ear were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 40 35 55 70 70 Although his current left ear hearing loss certainly met the criteria for a disability per VA regulations, the examiner opined that it was less likely than not that the Veteran's hearing difficulty was related to active service. The examiner noted that previously-noise-exposed ears are not more sensitive to future noise exposure, and that hearing loss due to noise exposure does not progress once that noise is discontinued. Focus was placed on the finding that hearing loss for VA purposes was not shown at the time of service discharge. However, the examiner did not explain whether the Veteran's left ear audiogram was indicative of age-related hearing difficulty or noise-induced hearing loss. He also failed to discuss the Veteran's lack of post-service noise exposure, his statements regarding the progressive onset of left ear hearing loss since separation, or any other possible etiology. As such, the Board requested an opinion from a VHA specialist in September 2012. A VHA opinion was received in October 2012. The specialist noted the Veteran's military duties, as well as the fact that ear protection was not used on occasion. A thorough review of the file was conducted, to include in-service whispered voice tests and audiograms. The specialist explained that the analysis of two factors was required in this case, threshold shift during the Veteran's military service, and the actual hearing thresholds obtained using different calibration standards. As to the first, it was noted that threshold shifts indicated that some factor during service influenced the Veteran's hearing levels. Hearing acuity in 1975 demonstrated a shift in threshold of 10 dB, at 4000 Hz, from that of the October 1964 audiogram. The specialist explained that this shift is greater than test/re-test measurement variability and thus reflected a valid shift over that period of time. As such, the specialist opined that the Veteran's left ear hearing loss at 4000 Hz was at least as likely as not etiologically related to the noise and other conditions to which the Veteran was exposed during his military service. Although service records were silent as to complaints of hearing loss, it was noted that the Veteran reported left ear hearing loss at the time of separation. Statements from the Veteran's spouse were also reviewed, indicating hearing loss in the 1990's. The specialist also noted the ruling in Hensley, indicating that when a significant threshold shift occurs, greater than normal measurement variability, hearing loss may still be established without clinical hearing loss on separation. As to whether the Veteran's current audiogram was consistent with noise-induced hearing loss, the specialist stated that it was at least as likely as not that current hearing loss, measured in post-service audiograms, reflect a combination of noise exposure in service, noise exposure after service, that of recreational activities, and the normal progression of hearing loss. It was noted that audiograms of record demonstrate bilateral, progressive hearing loss. While the current, clinically-abnormal hearing acuity stood in contrast to the clinically-normal hearing on separation, the Veteran's audiometric shifts during service established a nexus linking current, noise-induced hearing loss, at least in part, to in-service acoustic trauma. The Board further notes, in regard to the Veteran's assertion that he experienced hearing loss at the time of separation, the Veteran is competent to report in-service symptomatology, such as decreased hearing, from his period of service to the present. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the evidence is deemed credible, as his military service is commensurate with his claims of in-service acoustic trauma. The Veteran's lay statements have been afforded significant probative value due to their competency and credibility in the context of this appeal. These statements are further reinforced by the VHA opinion of October 2012, which indicated that threshold shifts during service, as well as current audiograms indicative of noise-inducted hearing loss, provided a link between the Veteran's current, left ear hearing loss and in-service acoustic trauma. Although the VA medical opinion of record was negative, the opinion did not consider the factors enunciated in Hensley and Ledford, which specifically state that the absence of hearing loss at the time of discharge from service does not preclude the possibility that subsequent hearing loss is related to service. Therefore, the most probative medical evidence of record, coupled with the Veteran's competent and credible lay statements, establishes that his current left ear hearing loss is related to in-service noise exposure. The Veteran's claim for entitlement to service connection for left ear hearing loss is granted. ORDER Entitlement to service connection for left ear hearing loss is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs