Citation Nr: 1300666 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 06-23 422 ) 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: Kathy A. Lieberman, Esquire ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim. In February 2010, the Board remanded the case to the RO for additional evidentiary development. In June 2011, the Board issued a decision, denying the claim. The Veteran appealed the June 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Order, the Court granted a Joint Motion by the Veteran and the Secretary of VA, vacating the Board's decision and remanding the matter back to the Board. In December 2012, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal. A waiver of RO jurisdiction for this evidence was received in a written statement dated December 2012 that is included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). Moreover, in light of the grant of benefits sought on appeal, there is no prejudice to the Veteran in proceeding with adjudication without remand to the RO for consideration of the additional evidence. Bernard v. Brown, 4 Vet.App. 384 (1993). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The currently diagnosed bilateral hearing loss is related to military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Service Connection In general, in order to prevail on the issue of service connection 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 also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has trouble hearing. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his hearing loss is attributable to noise exposure in the military where he served as a ground radio operator and was routinely exposed to high-frequency noise trauma, without ear protection. The Veteran claims his hearing loss first became noticeable in 1985. The Veteran denies any post-service occupational or recreational noise exposure. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's July 1962 entrance examination noted his ears were normal and a whisper test was performed with a score of 15/15. A health record from December 1962 notes the Veteran complained of right ear trouble. The Veteran did not complain of hearing loss. In April 1964, an audiological evaluation was performed with findings, (American Standards Associates (ASA) units converted to International Standards Organization (ISO) units) in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 10 5 LEFT 15 10 10 20 20 On an April 1964 Report of Medical History, the Veteran denied ear, nose or throat trouble. The Veteran's July 1966 separation examination noted his ears were normal. An audiological evaluation revealed (ASA units converted to ISO units), in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 5 LEFT 15 10 0 10 5 On a July 1966 Report of Medical History, the Veteran denied ear, nose or throat trouble. In April 2005, the Veteran underwent a private hearing examination. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 55 60 80 LEFT 20 20 45 65 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The Veteran was diagnosed with moderately severe hearing loss, bilaterally, with normal middle ear function. In April 2010, the Veteran underwent a VA audiological examination. The Veteran was diagnosed with mild to severe bilateral sensorineural hearing loss. The examiner noted the Veteran's in-service noise exposure, but then stated that military noise exposure was not conceded by the VA and that the only possible contributing factors included heredity and the aging process. Conversely, the February 2010 and June 2011 Board decisions concede that the Veteran had been exposed to acoustic trauma while in-service. The examiner also noted the Veteran denied a history of recreational or occupational noise exposure. Following an examination and review of the Veteran's claims file, including service treatment records (STRs), the VA examiner opined that his hearing loss was less likely as not caused by or a result of his military noise exposure. However, the examiner stated that no etiology for the hearing loss could be provided without resorting to speculation. In support of the opinion, the VA examiner noted the normal audiological evaluations upon the Veteran's enlistment, during his service and at discharge. However, the Joint Motion concluded that the examiner failed to appropriately consider the conceded in-service noise exposure, and as a result the examination is inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (an adequate medical opinion must consider all relevant records in the VA claims file so that the opinion is fully informed). In October 2012, the Veteran obtained a private audiological opinion. After review of the Veteran's VA claims file, the private doctor found that the Veteran's hearing loss was more likely than not caused by his military noise exposure. The doctor based the opinion on the Veteran's current hearing loss disability, his in-service exposure to high-frequency acoustic trauma, his awareness of a decrease in hearing acuity and clarity over time, and September 2012 statements from the Veteran's wife and daughters that his hearing loss became noticeable between the late 1980s and early 1990s. The doctor stated that it can take 10+ years for any signs of hearing difficulty to emerge after being exposed to noise that would induce hearing loss. A veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). After review of the evidence, the Board finds that service connection is warranted for bilateral hearing loss based on the competent and credible evidence that the Veteran's hearing loss is causally related to service. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner. The Joint Motion found that the VA examiner's opinion failed to consider the Veteran's conceded exposure to in-service acoustic trauma. Nieves-Rodriguez, 22 Vet. App. at 301; Reonal, 5 Vet. App. at 460-61. Therefore, the VA examination is inadequate and cannot be used as basis for a Board decision. In this case, the Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability; that he was exposed to acoustic trauma in-service with no hearing protection; that, post-service he has experienced a gradual decline in hearing ability; that post-service he has not been exposed to any occupational or recreational noise trauma; and, that an October 2012 private medical opinion attributes Veteran's current hearing loss to his history of military noise exposure. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs