Citation Nr: 1238024	
Decision Date: 11/06/12    Archive Date: 11/16/12

DOCKET NO.  09-33 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel


INTRODUCTION

The Veteran served on active duty from August 1959 to August 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal.  The Veteran submitted a notice of disagreement with this determination in April 2009, and timely perfected his appeal in September 2009.  The Board notes that the Montgomery, Alabama, RO has original jurisdiction over the Veteran's claim.

In February 2012, the Veteran testified before the undersigned Veterans Law Judge via video conference between the RO in Montgomery, Alabama, and the Board's central office in Washington, DC.  A transcript of that proceeding has been prepared and incorporated into the evidence of record.

In April 2012, this claim came before the Board.  At that time, it was determined that additional evidentiary development was necessary prior to the adjudication of the Veteran's claim.  This development having been accomplished, the claim is returned to the Board.

Referred Claim

The issue of entitlement to service connection for bilateral tinnitus has been raised by the record, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  As such, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action.

Advance on the Docket

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The preponderance of the evidence supports a finding that the Veteran currently suffers from bilateral hearing loss as a result of noise exposure in active duty service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

The Veteran's claim of entitlement to service connection for bilateral hearing loss has been granted, as discussed below.  As such, the Board finds that any error related to VA's duties to notify and assist on this claim is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  The Merits of the Claims

The Veteran contends that he currently suffers from bilateral hearing loss as a result of noise exposure during active duty service.  Specifically, the Veteran alleges that his military occupational specialty (MOS) as an artillery surveyor ultimately resulted in his current bilateral hearing loss.  The Board concurs.


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Relevant Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110, 1131 (West 2002).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  See 38 C.F.R. § 3.303(b) (2011).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2011).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

In addition to the above, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a physician relates the current condition to the period of service.  See 38 C.F.R. § 3.303(d) (2011).  Furthermore, sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  See 38 C.F.R. §§ 3.307, 3.309 (2011).

With hearing loss claims, VA may only find hearing loss 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 are less than 94 percent.  See 38 C.F.R. § 3.385 (2011).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  See also 38 C.F.R. § 3.159(a)(2) (2011).  In this regard, the Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009)

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See 38 C.F.R. § 3.303(a) (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Analysis

With respect to Shedden element (1), current diagnosis, the Board notes that a January 2012 private audiological examination included an uninterpreted audiogram.  The Board notes that it is empowered to make factual findings in the first instance.  The Board may also remand uninterpreted audiograms for interpretation; however, in this case, interpretation of such data is non-prejudicial.  Interpreted most favorably to the Veteran, the audiogram appears to show puretone threshold averages as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
30
30
45
LEFT
25
25
35
30
45

See Private Treatment Record, L.L.B., Au.D., January 20, 2012.  Thus, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes.  Shedden element (1) has been satisfied.  See 38 C.F.R. § 3.385 (2011); see also Shedden, supra.

Review of the Veteran's service treatment records reveals that upon entry into active duty service, the Veteran's hearing was noted as 15/15 for each ear upon whispered voice testing.  See Standard Form (SF) 88, Service Entrance Examination Report, October 8, 1958.  There is no evidence of any complaints of, or treatment for, hearing loss during the remainder of the Veteran's service.  Upon separation, the Veteran's audiometry results were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0

See SF 88, Service Separation Examination Report, June 20, 1961.  The Board notes that VA has already conceded that the Veteran's MOS is indicative of noise exposure in active duty service.  Furthermore, the Board finds that the Veteran is both competent and credible to report on the fact that he was exposed to loud noises during service and that he suffered from decreased hearing acuity since that time.  See Davidson, supra; Buchanan, supra; Jandreau, supra.  Therefore, the Board concedes that the Veteran was exposed to loud noise during service.  Thus, Shedden element (2), in-service disease or injury, has been satisfied.  See Shedden, supra.

With respect to crucial Shedden element (3), nexus, the medical evidence of record consists of VA audiological compensation and pension examinations dated in January 2009 and May 2012, as well as a May 2012 private audiological report.  The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

During his January 2009 VA audiological examination, the Veteran reported that he had suffered from bilateral hearing loss for the past 10 to 12 years.  He experienced difficulty hearing when there were multiple speakers and in the presence of background noise.  By way of history, the Veteran reported exposure to excessive noise due to artillery fire during his time in active military service.  Prior to entering the military, the Veteran worked in commercial banking for four years.  After his discharge from service he returned to banking and worked in this field for the following 44 years.  Puretone thresholds were measured in decibels at the following frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
35
LEFT
15
15
15
25
40

Speech recognition scores (Maryland CNC testing) were noted as 96 percent in the right ear and 92 percent in the left ear.  The VA examiner opined that puretone air and bone conduction thresholds indicated hearing within normal limits for the right ear and a mild high frequency sensorineural hearing loss in the left ear.  The VA examiner noted that the Veteran's whispered voice test upon induction to military service was 15/15 in October 1958 and that he had normal hearing upon separation from service in June 1961.  Based on this information, the VA examiner concluded that the Veteran's current hearing loss was not related to military noise exposure.  See VA Audiological Examination Report, January 29, 2009.

Due to the January 2009 VA examiner's lack of explanation as to why she determined that the Veteran's bilateral hearing loss was not due to his military service, the Board ordered a new examination in its April 2012 remand.  As such, a new examination was scheduled in May 2012.  At that time, puretone thresholds were measured in decibels at the following frequencies:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
25
35
LEFT
10
10
15
15
35

Speech recognition scores (Maryland CNC testing) were noted as 96 percent in both ears.  The VA examiner diagnosed the Veteran with sensorineural hearing loss of both ears.  The VA examiner noted that it was not at least as likely as not that the Veteran's hearing loss was caused by or the result of an event in military service.  In support of this conclusion, the VA examiner opined that the Veteran's induction physical included normal whispered voice testing and the Veteran's separation physical suggested hearing within normal limits.  Further, the Veteran did not report any combat activity.  During his two years in service, the Veteran stated that he was exposed to noise while he was stationed in Germany for approximately one and a half years.  His civilian occupation was working as a banker with no noise exposure.  "The presented loss can be consistent with his age."  The VA examiner concluded that since there was no loss at separation and since the Veteran reported no civilian occupational noise exposure, this loss was not consistent with military noise exposure.  See VA Audiological Examination Report, May 10, 2012.

With respect to the January 2009 and May 2012 VA audiological examinations, the Board notes that both VA examiners failed to acknowledge that VA had already conceded that the Veteran was exposed to loud noise in service due to his MOS.  Further, based on the fact that the Veteran did not complain of hearing loss at the time of his discharge from service, both VA examiners determined that the likely etiology of his bilateral hearing loss could not due to his time in service.  See VA Audiological Examination Reports, January 29, 2009 and May 10, 2012.  Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  It appears that the VA audiologists provided conclusory statements without providing any support therefore.  


Further, the Board notes that the requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Accordingly, the Board finds the January 2009 and May 2012 VA examination reports to be of limited probative value.

In support of his claim, the Veteran submitted a statement from D.J.W., Jr., M.D., dated in May 2012.  Dr. W.J.W. stated that the Veteran had mild to severe down-sloping sensorineural hearing loss in the right ear and mild to moderate down-sloping sensorineural hearing loss in the left ear, maximal at 4000 Hertz.  It was determined that the Veteran's hearing loss was consistent with a noise-induced loss from artillery exposure during his military service.  See Private Treatment Record, D.J.W., Jr., May 23, 2012.

In the present case, the Board concludes that the evidence is at least in equipoise and entitlement to service connection for bilateral hearing loss must be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).

Further, the Board notes that similar to the holding in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), bilateral hearing loss is a condition, which is capable of lay observation.  See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Furthermore, the Board finds the Veteran's claim regarding his having problems with bilateral hearing loss, without any subsequent employment or recreational related noise exposure, to be competent and credible evidence of continuity of symptomatology because the presence of this disorder is not a determination "medical in nature" and it is therefore capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra.

Therefore, with granting the Veteran the benefit of any reasonable doubt in this matter, the Board concludes that service connection for bilateral hearing loss is warranted because the record contains medical evidence of a current disability, evidence of the in-service incurrence of an injury, and medical evidence of a nexus between the in-service injury and the current disability.  See 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011); Shedden, supra.


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