Citation Nr: 1301227 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-01 776 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). This case was remanded by the Board in March 2010 and May 2011 for additional development. FINDING OF FACT It is at least as likely as not that the Veteran's currently diagnosed bilateral hearing loss is related to service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999). Alternatively, service connection may be awarded for a chronic disability when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). For certain chronic disabilities, including sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Impaired hearing is considered a disability for VA purposes 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 (2012). On a March 1963 service entrance report of medical history, the Veteran denied having, or ever having had, ear trouble. An audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) - 15 (20) LEFT 15 (30) 15 (25) 15 (25) - 15 (20) Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. The Veteran's service medical records are negative for any complaints or diagnosis of hearing loss. The Veteran's June 1967 separation medical examination did not include a report of medical history. The only audiological examination conducted on separation was a whispered voice test on which the Veteran scored 15 out of 15. After separation from service, a March 1999 private medical report noted that the Veteran had a history of Meniere's Disease. A September 2000 private audiological examination was conducted and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 50 55 LEFT 40 45 55 60 50 The medical evidence of record shows that bilateral hearing loss has been consistently diagnosed for VA purposes since September 2000. 38 C.F.R. § 3.385 (2012). In a March 2007 VA outpatient medical report, the Veteran complained of hearing problems since being subjected to loud noises and blasts in Vietnam. In a December 2008 VA audiology consultation report, the Veteran reported hazardous noise exposure during active service from aircraft and artillery. In a May 2009 VA audiological examination report, the Veteran complained of gradual bilateral hearing loss for the previous 30 to 40 years. He reported experiencing in-service noise exposure from aircraft and artillery without hearing protection, as well as post-service noise exposure from the railroad, recreational shooting, and boating, all with hearing protection. Following an audiological examination, the examiner stated that an etiological opinion regarding the Veteran's hearing loss could not be given without resort to mere speculation. The reasons given for the inability to provide an opinion were the Veteran's report of gradual onset of hearing loss rather than sudden onset, the lack of an audiogram on separation from service, and the Veteran's multiple potential non-service etiologies. In a June 2010 VA audiological examination report, the Veteran complained of progressive bilateral hearing loss and stated that he was not sure when it began. He reported experiencing in-service noise exposure from gunfire and aircraft without hearing protection, and post-service noise exposure from the railroad and recreational shooting, both with hearing protection. The Veteran also reported experiencing an ear infection during service. Following an audiological examination, the examiner stated that an etiological opinion regarding the Veteran's hearing loss could not be given without resort to mere speculation. The reasons given for the inability to provide an opinion were the unknown nature of the Veteran's hearing status at separation, the Veteran's reports of significant in-service and post-service noise exposure, and the Veteran's statements regarding the onset of his hearing loss in May 2009 and June 2010. In a June 2011 VA audiological examination report, the Veteran complained of gradual bilateral hearing loss. He reported experiencing in-service noise exposure from aircraft and artillery fire without hearing protection, and post-service noise exposure from the railroad, recreational shooting, and boating, all with hearing protection. The Veteran also reported experiencing an ear infection during service. Following an audiological examination, the examiner stated that an etiological opinion regarding the Veteran's hearing loss could not be given without resort to mere speculation. The reasons given for the inability to provide an opinion were the lack of an audiogram on separation from service and the Veteran's multiple potential in-service and post-service etiologies. A separate examiner opined that an etiological opinion regarding a relationship between the Veteran's hearing loss and noise exposure could not be given without resort to mere speculation, but then opined that the Veteran's bilateral hearing loss was not caused by or a result of an in-service ear infection. The rationale was that there was no objective evidence of a diagnosis of ear fungus and ear fungus was not the cause of the type of hearing loss that the Veteran experienced. The Board finds that the preponderance of the evidence of record shows that the Veteran's currently diagnosed bilateral hearing loss is related to service. The medical evidence of record shows that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385 (2012). While there is no medical evidence of hearing loss during the Veteran's period of active service, the only audiological testing of any kind which was conducted following the Veteran's entrance examination was the June 1967 separation medical examination which included only whispered voice testing. Whispered voice tests cannot be considered as reliable evidence that hearing loss did or did not occur, as they are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure. The unreliable nature of those tests was further confirmed by the May 2009, June 2010, and June 2011 VA audiological examination reports, all of which discounted the separation whispered voice testing as medically non-probative. The Veteran has consistently reported that he was exposed to hazardous noise during active service, mainly through exposure to aircraft and artillery. His service records show that he served as a motor vehicle operator and instructor throughout nearly his entire period of service. The Veteran's service records also show that for the majority of his service he was stationed in aircraft-oriented units, including the 1st and 2nd Marine Aircraft Wings. The Board finds that service in those types of units is consistent with exposure to significant noise and is also consistent with the Veteran's statements regarding the nature of his noise exposure. Accordingly, the Board finds that the evidence of record demonstrates that the Veteran had extensive noise exposure during service. The Veteran has stated that he has experienced hearing loss since his exposure to noise during service. The Board finds that the Veteran's statements are competent to show that he experienced a decrease in hearing acuity during service and after separation from service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 21 Vet. App. 191 (2007). In addition, the Board finds that the Veteran's statements about his history of hearing loss are credible. While there is no contemporary medical evidence that substantiates the Veteran's reports of hearing loss prior to September 2000, there is also no evidence that contradicts the Veteran's claims. Not only did the Veteran's separation medical examination not include a reliable audiological examination, there is not even a record of the Veteran's report of medical history at that time. As such, there is no competent evidence of record that the Veteran did not have hearing loss for VA purposes within one year of his separation from service. In summary, the competent medical evidence of record shows that the Veteran did not have hearing loss for VA purposes at the time of his entrance into service and that he has had bilateral hearing loss for VA purposes from at least September 2000 onwards. However, there is no competent evidence of any kind during the intervening period regarding the existence and etiology of the Veteran's hearing loss. Without contradictory evidence, the Board does not find the Veteran's statements to be incredible. Accordingly, the Board finds that the Veteran's statements are both competent and credible evidence that his symptoms began during service and that he had a continuity of symptomatology to the present. Davidson v. Shinseki, 581 F.3d 1313 (2009). Finally, there is no probative medical evidence of record regarding the etiology of the Veteran's currently diagnosed bilateral hearing loss. The only medical reports of record which comment on the etiology of the Veteran's currently diagnosed bilateral hearing loss are the May 2009, June 2010, and June 2011 VA audiological examination reports. All three of those reports stated that an etiological opinion could not be given without resort to mere speculation. The speculative nature of the May 2009, June 2010, and June 2011 opinions weighs neither for nor against the Veteran's claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, while the June 2011 report also included a non-speculative opinion regarding a relationship between the Veteran's currently diagnosed bilateral hearing loss and his claimed in-service ear infection, that opinion was limited to the ear infection etiology and the examiner who gave it was also unable to provide a non-speculative opinion with respect to the noise exposure etiology. Therefore, the only probative evidence of record regarding the etiology of the Veteran's currently diagnosed bilateral hearing loss are his own lay statements alleging a continuity of symptomatology since service, which the Board finds credible. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bilateral hearing loss is related to active service. Therefore, service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs