Citation Nr: 1237893 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 08-16 601 ) 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 Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in December 2009. A transcript of that proceeding has been associated with the claims file. The claim was previously remanded by the Board for additional development in March 2010, February 2012, and June 2012. FINDINGS OF FACT The competent and credible evidence is, at the very least, in relative equipoise as to whether the Veteran has bilateral hearing loss which manifested during service and has been continuous ever since. CONCLUSION OF LAW The criteria for the establishment of service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303(b), 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a)(2011). 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. Service Connection In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain chronic diseases (such as organic diseases of the nervous system including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). But if chronicity of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Further, evidence relating a current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Impaired hearing will be considered a disability only after threshold requirements are met. 38 C.F.R. § 3.385. 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. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Bilateral Hearing Loss - Facts and Analysis The Veteran seeks service connection for bilateral hearing loss. At his hearing before the undersigned, he testified that he has experienced near-continuous bilateral hearing loss since his combat duty in Iraq in 2003, following exposure to loud explosions, scud missiles, and weapons firing, all without hearing protection. See Travel Board Hearing Transcript, p. 5. With respect to the first element of a direct service connection claim, that of current disability, the Veteran's most recent (of many)VA audiological examinations reflects speech recognition scores of 92 percent (right ear) and 88 percent (left ear). See July 2012 VA Audiological Examination. Under 38 C.F.R. § 3.385, hearing loss manifested by speech recognition less than 94 percent using the Maryland CNC word test is defined by VA as a hearing loss disability. Therefore, the Veteran has demonstrated a current hearing loss disability in accordance with the provisions of 38 C.F.R. § 3.385. With respect to the second element of service connection, that of in-service disease or injury, the Board notes that in-service acoustic trauma has already been conceded by VA. Indeed, the Veteran is currently service-connected for both tinnitus and PTSD based upon his exposure to explosion, weapons firing, and scud missile attacks while serving in Iraq in 2003. See, e.g., May 2005 Stressor Statement; October 2005 Rating Decision (granting PTSD); and February 2012 Board Decision (granting tinnitus). Thus, the Veteran's competent and credible reports of acoustic trauma are sufficient to satisfy the in-service injury requirement for service-connection. See Shedden, supra. In addition to the acoustic trauma noted above, the service treatment records also demonstrate several acute episodes of hearing loss in 1985. This is discussed further below. The remaining question is whether there is a nexus between the conceded in-service acoustic trauma (or the acute hearing loss demonstrated in 1985) and the current bilateral hearing loss disability. Again, continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements. With respect to in-service findings, service treatment records do reflect that the Veteran experienced hearing loss (albeit a temporary hearing loss/threshold shift) in 1985. Specifically, a June 1985 audiometric test revealed hearing thresholds of 65, 65, 75, 50, and 75 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, in the left ear, and of 70, 80, 85, 90 and 99 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, in the right. The Veteran was referred for a follow-up. A hearing conservation data record shows that the Veteran underwent audiometric testing again in August 1985. Audiometric testing at that time revealed hearing thresholds of 25, 20, 20, 40, and 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, in the left ear, and of 25, 15, 15, 30 and 40 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, in the right. In March 1986, audiometric testing showed hearing thresholds (from 1kHz to 4kHz) within normal limits. Audiometric testing conducted in February 1987, May 1987, and April 2001, again showed hearing within normal limits. In a December 2003 post-deployment assessment record, the Veteran reported being exposed to loud noises and excessive vibration during his service in Iraq. Lastly, an October 2004 audiogram revealed normal hearing. The Veteran separated from active duty service in January 2005. Shortly thereafter, in 2006, the Veteran sought private treatment for hearing problems, but specifically for tinnitus. In this regard, an October 2006 medical report from Dr. Greene, M.D., indicates that the Veteran was diagnosed with vertigo and tinnitus. Dr. Greene noted that he discussed "with the patient the relationship between tinnitus and hearing loss" and the potential causes of hearing loss. (Emphasis added). This medical record also reflects that acoustic reflex testing, tympanogram, evoked auditory examination, and comprehensive hearing tests were all normal. The Veteran's speech discrimination scores in both ears were reportedly 100%. It is noteworthy that none of the diagnostic tests conducted in association with Dr. Greene's evaluations are actually contained in the claims file. In other words, there are no associated audiograms or specific audiometric findings of record to review in conjunction with Dr. Greene's examination. In addition, Dr. Greene's report indicates that the Veteran was referred to him by a Dr. Alignay, M.D. However, the claims file does not contain any contemporaneous treatment records from Dr. Alignay, the referring physician. Pursuant to the Board's February 2012 remand, the RO sent a letter to the Veteran requesting releases to obtain Dr. Greene's audiological reports as well as any treatment records from Dr. Alignay. In March 2012, the Veteran sent a response letter requesting that the RO obtain treatment records from Dr. Alignay and Dr. Greene in support of his claim; however, he did not include any release or authorization forms with his request and the RO did not follow-up with an additional request for such releases. Next, at his July 2007 VA audiology consult, the Veteran again reported that he was exposed to combat noise in Iraq and, generally, throughout his military service. He noted severe, temporary hearing loss, which progressed into tinnitus, shortly after an explosion in 2003. Objectively, a "slight" degree of sensorineural hearing loss was shown, bilaterally, upon audiometric testing. The audiology examiner stated that the Veteran was a good candidate for hearing aids due to adverse effects of tinnitus. In December 2009, the Veteran testified before the undersigned Veterans Law Judge. He reported that his hearing loss began with exposure to numerous weapons firing and explosions in-service. He stated that he was currently employed as a test administrator and that had not been exposed to any significant post-service occupational noise. In addition, he testified that he first sought treatment for his hearing loss at Bay Pines VAMC within five or six months of his separation from service. The Veteran was also afforded VA audiology examinations in May 2007, October 2010, April 2012, and July 2012 (the probative value of these opinions will be discussed at length below). During the May 2007 VA examination, the Veteran again reported exposure to scud missiles and other explosions without hearing protection in Iraq in 2003; he also reported exposure to rifle range fire throughout his military career. He stated that both the hearing loss and tinnitus had progressed after separation from service. He denied post-service recreational or occupational noise exposure. During the October 2010 VA examination, the Veteran stated that he had experienced bilateral hearing loss for the last two to three years. He reported frequent exposure to explosions and gunfire, without the use of ear protection. He denied post-service recreational or occupational noise exposure. During the April 2012 VA examination, the Veteran stated that his hearing loss began during service and that he has experienced continuous hearing loss since that time. He again denied post-service recreational or occupational noise exposure. The July 2012 VA examination does not discuss or otherwise report any of the Veteran's lay assertions regarding onset or continuity of hearing loss symptoms. The Veteran asserts that continuity of hearing loss symptomatology has been demonstrated in this case. As indicated above, he has consistently reported in lay statements, hearing testimony, and in associated post-service VA medical records, that he has experienced hearing loss symptomatology since service. See, e.g., Hearing Transcript, pp. 5-6. The Board finds that the Veteran's statements regarding onset of hearing loss, as well as continuity of hearing loss symptomatology, are both competent (as he is capable of reporting such readily observable symptoms) and credible (as his statements have been consistently reported throughout the record). Layno v. Brown, 6 Vet. App. 465, 469 (1994). Again, lay assertions of continuity of symptomatology alone may be sufficient to establish service connection. See Buchanan, supra; see also Shedden. In this instance, the service treatment records documenting a temporary hearing loss in 1985, the post-service private treatment records reflecting hearing-related complaints as early as October 2006, and the numerous VA treatment reports/examinations showing complaints of hearing loss consistently thereafter (with a diagnosis of hearing loss meeting the criteria under 38 C.F.R. § 3.385 in July 2012), all provide persuasive, additional support to the Veteran's assertion of a continuity of symptomatology since service. In so finding, the Board acknowledges that the May 2007, October 2010, April 2012, and July 2012 VA examiner's all provided either inconclusive or negative nexus opinions. For reasons discussed in the Board's prior remands and immediately below, these opinions are of little probative value. With respect to the May 2007 examination, the VA examiner stated that he was unable to provide an opinion due to unreliable and unsuitable audiological findings. The October 2010 VA examiner stated that the Veteran's hearing loss was more likely a "post-service" occurrence, but provided no supporting rationale or reasoning (e.g., positive post-service noise exposure, etc.) for the basis of his conclusion. Again, the Veteran has consistently denied having any post-service occupational/recreational noise exposure. The April 2012 examiner likewise provided a negative opinion, stating that there was no corroborating evidence to support the Veteran's contentions that his hearing loss began in-service; he was also unable to locate the STRs which noted hearing loss in 1985 ("I did not locate the 6/85 audiogram referenced..."). In essence, the examiner summarily dismissed the Veteran's lay contentions and failed to review the entire record, to include pertinent STRs. Lastly, the July 2012 VA examiner provided a negative opinion, but made no reference to the Veteran's competent lay statements/testimony regarding onset and continuity. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). For the various reasons outlined above, the Board finds that the May 2007, October 2010, April 2012, and July 2012, VA examination opinions lack probative value. Having assigned the VA opinions very little probative value, the Board is thus left with the following evidence: in-service evidence of hearing loss (albeit, a temporary hearing loss) in 1985; in-service acoustic trauma occurring around 2003; post-service treatment for hearing-related problems (tinnitus) in 2006, proximate to the Veteran's 2005 separation from service; a July 2007 VA audiological consult recommending hearing aid amplification; continuous complaints of hearing loss documented in VA treatment records thereafter; and the Veteran's competent lay assertions that he has experienced hearing loss since service. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002)(holding that tinnitus is a condition that is capable of lay observation). Absent some indication that his lay assertions are not credible, and given that there is evidence of in-service acoustic trauma and well-documented post-service continuity of hearing loss symptomatology/treatment, the Board finds that the evidence is, at the very least, in equipoise as to whether the Veteran's hearing loss is related to service. In resolving all doubt in the Veteran's behalf, service connection is warranted for this disability. See 38 C.F.R. § 3.303(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs