Citation Nr: 1218529 Decision Date: 05/24/12 Archive Date: 06/07/12 DOCKET NO. 09-11 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The Veteran has a bilateral hearing loss disability that is reasonably attributable to his period of military service. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits and imposes obligations on VA in terms of its duty to notify and to assist claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with the issue on appeal, no further discussion of the VCAA is required with respect to this claim. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 (2011). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The lack of a documented hearing loss in service is only one aspect for consideration and is not dispositive. In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the United States Court of Appeals for Veterans Claims (Court) found that the absence of a documented hearing loss while in service is not fatal to a claim for service connection. Further, in Hensley, the Court noted that, when a veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App. at 159-160. Finally, in Peters v. Brown, 6 Vet. App. 540, 543 (1994), the Court said that a veteran may establish service connection for a disability not manifested during service, or within the statutory presumptive period, with evidence that demonstrates that the disability actually resulted from a disease or injury incurred in service. In this case, the Veteran contends that he developed bilateral hearing loss due to exposure to acoustic trauma during service. Such acoustic trauma was from duties associated with his military specialty as a heavy vehicle operator. In addition, he said that he was part of the military forces employed during Operation Frequent Wind, the evacuation of personnel during the fall of Saigon. In this regard, he said that he was required to make multiple helicopter rides without the benefit of hearing protection during the entire operation. A review of the Veteran's service treatment records (STRs) shows that he was assigned to a U. S. Marine unit overseas in 1975. His DD 214 reflects his military specialty as claimed and shows that he had approximately one year of foreign and/or sea duty. Finally, he received the Armed Forces Expeditionary Medal (AFEM), which was given to military participants of Operation Frequent Wind (April 1975). Thus, upon review of the evidence of record, the Veteran's claimed exposure to acoustic trauma in service is conceded. See 38 U.S.C.A. § 1154(a) (West 2002). The Veteran's audiogram from his May 1974 entrance physical examination reflects the following puretone thresholds in decibels: HERTZ May 1974 500 1000 2000 3000 4000 RIGHT 10 10 10 X 15 LEFT 20 10 15 X 25 STRs also include the following results of an audiogram that was completed in December 1975. HERTZ Dec. 1975 500 1000 2000 3000 4000 RIGHT 20 10 20 20 25 LEFT 25 15 15 15 15 In addition, the Veteran underwent two audiograms conducted as part of a hearing conservation program. The first test, from June 1976, had the following results. HERTZ June 1976 500 1000 2000 3000 4000 RIGHT 15 15 5 5 5 LEFT 30 20 10 10 10 The second audiogram was in September 1976. HERTZ Sept. 1976 500 1000 2000 3000 4000 RIGHT 15 5 10 10 10 LEFT 5 5 5 15 5 A final audiogram was done as part of the Veteran's separation physical examination in June 1978. The results of the testing were as follows: HERTZ June 1978 500 1000 2000 3000 4000 RIGHT 5 0 5 5 5 LEFT 5 5 10 15 10 In October 2007, the Veteran filed his claim for service connection for bilateral hearing loss and tinnitus, including a September 2007 letter with a listing of hearing tests from his employer. The list includes the results of employer-provided audiograms dated in 1991, 1995, and 2001-2007. The letter informed the Veteran that he had a severe hearing loss in his left ear and a moderately severe hearing loss in his right ear; that the basis for the severe hearing loss was an average decibel loss of 70 decibels, and for the moderately severe hearing loss was an average decibel loss of 55; and that he had experienced a standard threshold shift (STS) (which occurs when there is a change in hearing with a greater than 10 decibel change in the frequencies of 2000, 3000, and 4000 Hertz when compared to the baseline). The letter indicated two such shifts, one in September 2002 and one with the current audiogram from September 2007. No speech discrimination scores were listed. The baseline audiogram was dated in September 1991, and it appears it was based on bone conduction testing with the following results: HERTZ Sept. 1991 500 1000 2000 3000 4000 RIGHT 20 5 10 20 10 LEFT 15 15 20 25 25 The September 2002 test appears to have been done with air conduction with the following results: HERTZ Sept. 2002 500 1000 2000 3000 4000 RIGHT 15 10 25 30 40 LEFT 20 15 25 25 25 The most recent test (air conduction) results were from September 2007 as follows: HERTZ Sept. 2007 500 1000 2000 3000 4000 RIGHT 10 10 20 25 45 LEFT 20 15 25 25 55 The Board notes that all but the first audiogram contained results for testing at 6000 and 8000 Hertz, respectively. Even with the first audiogram in 1991, the Veteran had a 95 decibel loss in his right ear and a 90 decibel loss in his left ear at 6000 Hertz. In the 10 subsequent audiograms, the decibel loss at 6000 Hertz was never less than 80 decibels in either ear. The Veteran's separation physical examination in June 1978 documented a 60 decibel loss in his right ear and a 55 decibel loss in his left ear. The Veteran was afforded a VA audiology examination in February 2008. The examiner reported that he had reviewed the claims file and that the Veteran's audiometric thresholds were normal by VA standards on the separation audiogram. The Veteran reported having difficulty hearing with background noise. The Veteran gave a history of noise exposure in service from being around heavy equipment, artillery and helicopters. Post-service noise exposure was related to his employment. He worked around blower motors and was required to where hearing protection. The Veteran's recreational noise exposure included some past hunting and current target shooting and riding a motorcycle. The Veteran also complained of periodic tinnitus that he had experienced since service. The results of audiometric testing, based on air conduction, were as follows: HERTZ Feb. 2008 500 1000 2000 3000 4000 RIGHT 15 20 30 25 45 LEFT 20 20 30 25 55 The Veteran had a speech discrimination score of 64 percent for his right ear and 80 percent for his left ear. The examiner said that the results were most consistent with a sensorineural impairment and that, by history, the current tinnitus was likely related to military service. In regard to the hearing loss, the examiner said that the induction and discharge audiograms both showed normal hearing bilaterally by VA standards. Based on what the examiner said was normal hearing at discharge, it was not likely that the Veteran's current hearing loss was related to noise exposure in service. The RO denied the Veteran's claim in February 2008. The RO noted that the STRs did not show evidence of a hearing loss for VA purposes in service and that post-service reports did not show hearing loss for VA purposes within one year after service. Further, the VA examiner had provided an opinion that the current hearing loss disability was not related to service. The Veteran was granted service connection for his tinnitus, based on his noise exposure in service. The Veteran's notice of disagreement (NOD) was received in February 2009. The Veteran, through his representative, argued that the absence of a hearing loss in service did not preclude service connection. The submission cited to a number of findings from a report from the Institute of Medicine of the National Academies in regard to noise and military service and hearing loss and tinnitus. The RO returned the Veteran's claims file to the VA audiology examiner with a request for him to convert what the RO said was the old audiometrics (ASA) to the current ANSI standard. The Board notes that, prior to June 30, 1966, for VA tests and October 31, 1967, for military tests, a different standard was used to measure decibel loss on audiograms. The American Standards Association (ASA) method was the prior standard. The International Standards Organization (ISO) measurement, also known as Americans National Standards Institute (ANSI), was used after that time for measuring decibel loss. The VA examiner did perform the requested conversion by adding the standard variance normally applied to ASA results to convert them to ISO/ANSI results. This conversion was unnecessary and improper as the audiogram results listed in the Veteran's STRs were already ISO/ANSI compliant with notations to that effect on the record entries. Further, there is no basis to conclude that the private audiogram results required any conversion as they are dated long after the conversion date. The examiner still maintained that the Veteran's hearing loss was not related to service. He stated that the military records did not demonstrate a significant shift in thresholds in either ear from the induction to discharge examinations. The examiner noted that the National Institute for Occupational and Health (NIOSH) dictated that a shift of 10 decibels or less at any frequency was a change that was within normal variability. The Veteran perfected his appeal in April 2009. He said that he had never had a speech recognition test and did not have a hearing test after service until his employer in 1991. He said he never knew how bad his word guessing was. He reported that he had gotten hearing aids and that they had made a great improvement. The Veteran stated that he never knew he could not hear; he just thought that the level of hearing that he experienced was normal. The STRs do not document a hearing loss for VA purposes under 38 C.F.R. § 3.385; however, the STRs do document a clear hearing loss at 6000 and 8000 Hertz at the time of separation in June 1978. As noted in Hensley, the threshold for normal hearing is 0 to 20 decibels. Thus, even if those values are not within the normal range for consideration of a VA disability, they clearly reflect hearing loss. Moreover, the results in June 1978 represented a significant increase above those measured on the earlier service audiograms at the same level. The private audiograms show a continuation of that hearing loss and even a decline in the Veteran's hearing at the 6000 and 8000 Hertz level. His hearing also declined over the years in the 500-4000 Hertz range despite his wearing hearing protection on the job. Ultimately, the Veteran's hearing loss did manifest itself such that it met the regulatory requirements of 38 C.F.R. § 3.385. It was in September 2002 for his right ear and September 2004 for his left ear. The Veteran's noise exposure in service is conceded-both by way of circumstances of his duty and by way of service connection for tinnitus based on such noise exposure. The Veteran has said that he had his hearing loss and tinnitus since service. He thought his hearing loss was normal because it was not tested until at least 1991. He is competent to provide lay evidence of his symptoms, to include his reported onset and continuity. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's statements are credible. The later results of testing at the higher frequencies clearly follow those noted in service and demonstrate a pattern of increased loss, and at least continuity, even if at frequencies outside those used by VA for disability purposes. In addition, the Veteran has been granted compensation for tinnitus which adds weight to his claim that his hearing loss is also related to service because "an associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. In view of the totality of the evidence, the Board finds that it is at least as likely as not that the Veteran's current bilateral hearing loss, as documented in his VA examination of February 2008, was incurred in active service. [In reaching this conclusion, the Board acknowledges that the February 2008 VA examiner provided a negative nexus opinion. However, that examiner based that negative opinion on the findings of normal hearing at separation but did not, however, address the significant shift in auditory threshold decibels during and after service. In addition, the examiner did not address the fact the Veteran is service connected for tinnitus and that "an associated hearing loss is usually present" with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. Thus, the Board does not find the February 2008 VA examiner's negative nexus opinion to be probative.] Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs