Citation Nr: 1300959 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-12 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty in the military from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the case was subsequently transferred to the RO in New York, New York. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Resolving all doubt in favor of the Veteran, left ear hearing loss is etiologically related to noise exposure during active military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for left ear hearing loss herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran claims that his left ear hearing loss is related to his service with the United States Army from November 1966 to November 1968. Specifically, he asserts that he was exposed to automatic weapons, grenades, and armor personnel carriers and did not use hearing protection. The Veteran attributes his current left ear hearing loss to this acoustic trauma. Notably, the Veteran is already service connected for right ear hearing loss and tinnitus based on the reported in-service acoustic trauma. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) . Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records include an audiological examination report conducted during his enlistment in October 1966 which reveals the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 0 0 5 Left Ear 0 0 0 0 Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Based on such conversion, the Veteran's audiological examination at the time of his service entrance in October 1966 reveals the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 10 10 10 Left Ear 15 10 10 5 In his October 1966 Report of Medical History the Veteran denied hearing loss. Notably, a December 1966 service treatment record notes complaints of noise in the left ear. An audiological examination report at separation dated in October 1968 revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 0 5 15 Left Ear 0 0 5 0 15 The Veteran filed a claim for service connection for bilateral hearing loss in November 2006. In connection with his claim, the RO obtained all available VA treatment records. These records are dated from October 2006 through December 2006 and show treatment for bilateral hearing loss and tinnitus. The Veteran was afforded a VA audiological examination in February 2008. Audiological testing revealed the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 15 60 65 65 Left Ear 105 105 105 105 105 Puretone Threshold Average Right Ear 51 Left Ear 105 Speech discrimination Right Ear 48% Left Ear 0% Notably, this report shows bilateral hearing loss pursuant to 38 C.F.R. § 3.385. The VA examiner reviewed the claims file and noted a December 2006 VA treatment record wherein the Veteran reported sudden left ear hearing loss approximately three years earlier. The examiner also noted that the Veteran's DD-214 indicates that the Veteran's specialty was Light Weapons Infantry and his medals included the SharpShooter Rifle. Furthermore, the examiner noted the December 1966 complaint of "noise in left ear." During this examination the Veteran reported a history of military acoustic trauma including automatic weapons, grenades, and armor personnel carriers. No hearing protection was used during service. The Veteran reported minimal occupational noise exposure post-service while working in corrections. Specifically, he reported shooting range qualifying once per year and always with hearing protection. The Veteran denied recreational noise exposure. The Veteran indicated that he had periodically recurring ringing tinnitus in the right ear but was unsure when it started. The tinnitus recurred at least once per week. The Veteran reported constant ringing tinnitus in the left ear since military acoustic trauma. The examiner opined that the most likely etiology of the Veteran's tinnitus was his military acoustic trauma. The examiner also noted that the tinnitus was due to the same etiology as his hearing loss of the right ear and, in part, due to the same etiology of his hearing loss of the left ear. Based on a review of the claims file the examiner opined that it was at least as likely as not that the Veteran's right ear hearing loss was the result of military acoustic trauma. With regard to the left ear, the examiner indicated that she was unable to determine whether the left ear hearing loss was related to military service without resort to mere speculation due to a sudden left ear hearing loss approximately four years earlier. The examiner noted that it was unknown what degree of hearing loss was present in the left ear prior to the Veteran's sudden hearing loss. In addition, the examiner reported that it was at least as likely as not that the Veteran's bilateral tinnitus was the result of his military acoustic trauma. A May 2008 private audiological examination report continues to show bilateral hearing loss pursuant to 38 C.F.R. § 3.385. In an accompanying report, also dated in May 2008, Dr. M.M.C. noted that the Veteran's service treatment records clearly show that his hearing was poorer at his exit physical than it was when he was first taken into the service and this applied to both the right and left ears. As such, the Veteran was granted service connection for hearing loss in the right ear and tinnitus bilaterally. Service connection for hearing loss on the left side was denied based upon the fact that a VA treatment report dated in December 2006 indicated that the Veteran reported a sudden left ear hearing loss three years prior to that time (2003). The denial also stated that the Veteran's hearing acuity of the left ear prior to the sudden loss was not known. However, Dr. M.M.C. noted that this was not entirely true. The military knew about the Veteran's hearing loss at his exit physical and included the loss in both ears. Dr. M.M.C. indicated that a much more equitable decision regarding service connection for hearing loss on the left side would have been to rate the Veteran as service-connected for the degree of loss evident at his discharge examination. However, the February 2008 VA examiner was reportedly unable to determine the cause of the sudden hearing loss without resorting to mere speculation. Dr. M.M.C. questioned why there was a need to resort to mere speculation instead of reverting to the separation examination at which point the military was well aware of the degree of hearing loss in both ears and simply service connect the Veteran for the left side at that degree of loss. In other words, Dr. M.M.C. wrote that rather than give the Veteran the benefit of the doubt and indicate that VA recognized that the Veteran's hearing had shifted downward in both ears at his separation examination, that fact was simply glossed over and ignored. Dr. M.M.C. wrote that this was mere speculation on VA's part to require the cause of the sudden hearing loss. In conclusion, Dr. M.M.C. opined that it was only fair to service connect the Veteran's left ear hearing loss at the level it existed at his separation examination. In this case, medical evidence shows a current left ear hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. The evidence also suggests a link between this hearing loss and the Veteran's military service. In this regard, the Veteran alleges military acoustic trauma including automatic weapons, grenades, and armor personnel carriers. He also indicated in his March 2009 substantive appeal that he had noticed a gradual hearing loss in his left ear, which profoundly worsened at the beginning of 2006. The Board finds great credibility in these assertions. Moreover, his service treatment record demonstrate complaints of noise in the left ear and that, while the Veteran's left ear hearing acuity improved at the 500, 1000, and 2000 Hertz levels, there was a decrease at 4000 Hertz from the time of his service entrance to his discharge. While the February 2008 VA examiner stated that she was unable to determine whether a relationship exists between the Veteran's current left ear hearing loss and exposure to hazardous noise in service, the May 2008 private audiologist suggested that his left hearing loss was related to in-service noise exposure based upon his decrease in hearing acuity upon separation. Therefore, in light of the VA examiner's inability to render an opinion and the Dr. M.M.C.'s supportive statement, as well as the Veteran's competent and credible reports regarding his in-service noise exposure and current left ear hearing loss, the Board will resolve all doubt in his favor and find that service connection for left ear hearing loss is warranted. ORDER Service connection for left ear hearing loss is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs