Citation Nr: 1301469	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-42 363	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from July 1972 to June 1975. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO).


FINDING OF FACT

The Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  This is so because the Board is taking action favorable to the Veteran by granting the issue at hand.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). 

The Veteran contends that his currently diagnosed bilateral hearing loss is the result of exposure to artillery noise during his active duty service.  The Veteran asserted that he first noticed decreased hearing sensitivity when he was discharged from service in 1975 and that he has experienced hearing loss since discharge.  The Veteran denied any significant post-service noise exposure.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including sensorineural, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012).

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, 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 using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

However, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was 13E20 FA OPR INTEL ASST (Field Artillery Operations Intelligence Assistant).  The related civilian occupation was listed as DRAFTSMAN MAP.  A photocopied chart associated with the record by the RO in April 2012 detailed that the MOS of 13E was identified as cannon fire direction specialist and shown to have a high probability of hazardous noise exposure.  

Service treatment records associated with the claims file are negative for a diagnosis of or treatment for a bilateral hearing loss disability as defined by VA.  In a March 1972 service enlistment examination report, pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
15
N/A
5
LEFT
20
5
5
N/A
5

In an April 1975 service separation examination report, pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
5
N/A
10
LEFT
5
5
5
N/A
20

The Veteran was afforded VA audiology examinations in connection with his claim in November 2007, April 2012, and August 2012. 

In the November 2007 VA audiology examination report, the Veteran reported a history of in-service noise exposure and decreased hearing sensitivity that began in 

both ears during active duty service.  He denied a history of significant post-service occupational or recreational noise exposure.  Pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
0
60
70
80
85
LEFT
0
55
60
65
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.  After reviewing the claims file and examining the Veteran, the examiner diagnosed moderately severe to severe sensorineural hearing loss from the mid to high frequencies for both ears.  The VA examiner observed that the Veteran's service treatment records did not show a decrease in hearing sensitivity during service, that the Veteran did not describe any specific acoustic trauma, that the Veteran's military occupation did not suggest routine hazardous noise level conditions, and that the Veteran's enlistment and separation evaluations did not show a significant threshold shift for either ear.  Thereafter, the VA examiner opined that it appeared the claimed hearing impairment was not caused by noise exposure experiences while in service. 

In the April 2012 VA audiology examination report, the pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
0
60
70
80
85
LEFT
0
55
60
65
80

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear.  After reviewing the claims file and examining the Veteran, the examiner diagnosed bilateral sensorineural hearing loss.  The VA examiner opined that the Veteran's hearing loss was not "at least as likely as not" caused by or a result of an event in military service.  Although the VA examiner found the record showed the Veteran was exposed to potentially hazardous noise 

levels, the VA examiner based the opinion on the Veteran's enlistment and separation examination report findings, which showed hearing sensitivity within normal limits for all frequencies tested for both ears.  Based on documented normal hearing sensitivity at the time of the Veteran's separation, the VA examiner noted that it appeared the Veteran's current hearing loss occurred after military service.

In the August 2012 remand, the Board determined that the November 2007 and April 2012 VA examinations were inadequate for adjudication purposes.  It was indicated that that the November 2007 VA examiner's opinion was based, in part, on an incorrect factual basis.  Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Hadsell v. Brown, 4, Vet App. 208, 209 (1993).  Whereas the November 2007 VA examiner found the Veteran's military occupation did not suggest routine hazardous noise level conditions, the Board highlighted that evidence of record demonstrated that the Veteran's MOS was consistent with his contentions that he was exposed to hazardous noise.  Although the April 2012 VA examiner found the record showed the Veteran was exposed to potentially hazardous noise levels, the VA examiner based the opinion on the Veteran's enlistment and separation examination report findings, which showed hearing sensitivity within normal limits for all frequencies tested for both ears.  Hensley, 5 Vet. App. at 159 (holding that if a hearing loss disability for VA purposes is not shown in service or at separation from service, service connection can be established if the medical evidence shows that it is actually due to incidents during service). 

In addition, it was noted that neither of the November 2007 and April 2012 VA opinions considered the Veteran's reports of in-service noise exposure and his statements as to symptoms at the time of his separation from service.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses).  Furthermore, the Board commented that the VA examiners failed to consider the Veteran's reports of experiencing continuous symptoms following his separation from service and the absence of post-service noise exposure as well as to provide 

opinions concerning the actual etiology of the Veteran's current bilateral hearing loss.  Based on the foregoing discussion, the Board ordered another VA examination, instructing the examiner to state whether any degree of the Veteran's current bilateral hearing loss was related to his active duty service, to include as due to exposure to acoustic trauma, following a review of the entire evidence of record, to include service treatment records, the Veteran's MOS, the Veteran's reported history of in-service and post-service noise exposure, and with consideration of the Veteran's statements as to the onset of his bilateral hearing loss and continuing symptoms.

In the August 2012 VA audiology examination report, the pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
10
70
70
90
105+
LEFT
10
70
70
80
95

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.  After reviewing the claims file and examining the Veteran, the examiner diagnosed bilateral sensorineural hearing loss.  The VA examiner opined that that the Veteran's hearing loss was not "at least as likely as not" (50 percent probability or greater) caused by or a result of an event in military service.  In the listed rationale, the VA examiner initially noted that the Veteran's service enlistment and separation examinations showed normal hearing for all frequencies in both ears, with no significant threshold shift for either ear.  Thereafter, the VA examiner acknowledged the Veteran's assertions that his hearing loss began in 1975, with no treatment provider or location listed.  Citing to the November 2007 VA examination report, the VA examiner noted the Veteran's reports of in-service noise exposure while assigned to artillery in the fire direction center for two years and ten months, and the Veteran's denials of a history of significant occupational or recreational noise exposure, as well as a history of ear pathology.  The VA examiner further noted the Veteran's "military occupation does not suggest routine hazardous noise level" and that the "DD 214 indicates 'FA Opr 

Intel Asst' with related civilian occupation as 'Draftman map'", again referencing statements from the November 2007 VA examination report.  The VA examiner also commented that there was no remote hearing data other than the two previous VA examinations in November 2007 (32 years after military service) and in April 2012 (37 years after military service).

After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss is warranted.  In this case, post-service VA audiology examination results dated in November 2007, April 2012, and August 2012 reflect a bilateral hearing disability for VA benefit purposes.  38 C.F.R. § 3.385.  

The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments.  38 U.S.C.A. § 1154(a) (West 2012).  Service personnel records, including his DD Form 214, demonstrated that the Veteran served as a Field Artillery Operations Intelligence Assistant.  The Veteran's reported duties comport with the nature of his MOS and his duty station.  There is no evidence of record demonstrating that the Veteran was not exposed to noise from artillery during active service as asserted.  As such, the Board finds competent and credible the Veteran's report of exposure to noise associated with working with artillery.  

During the pendency of the appeal, the Veteran asserted that he experienced decreased hearing acuity in his ears during his active duty service as the result of exposure to noise associated with working around artillery.  The Veteran further asserted that these symptoms persisted from the time of the in-service acoustic trauma until the present.  Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(holding that lay statements are competent evidence of a diagnosis if they describe symptoms that support a later diagnosis by a medical professional).

Further, 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.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The presence of a bilateral hearing loss is readily identifiable by its features and, thus, is capable of lay observation by the Veteran.  Charles v. Principi, 16 Vet. App. 370, 374-75 (2002).  The Veteran's statements and testimony are, thus, competent evidence that he experienced in-service symptoms of bilateral hearing loss and that he has continuously experienced such symptoms since his active service discharge. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Buchanan v. Nicholson, 451 Vet. App. 1331, 1337 (Fed. Cir. 2006). 

Once lay evidence has been determined to be competent, the Board must also determine whether such evidence is credible.  See Layno, 6 Vet. App. at 469.  In weighing the credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the appellant.  Caluza, 7 Vet. App. at 506.  Further, the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan, 451 Vet. App. at 1337.

The Board finds that it is facially plausible that the Veteran has experienced bilateral hearing loss since working around artillery during service.  Additionally, the Veteran's statements are internally consistent, as he has repeatedly asserted that his hearing loss onset during service in 1975 and continued to the present.
There was also no evidence of record demonstrating acoustic trauma or any occupational or recreational noise exposure following the Veteran's active duty discharge.  Based on the above, the Board finds credible the Veteran's assertions of experiencing bilateral hearing loss since active duty service.

In reaching this decision, the Board has considered the opinions offered in the November 2007, April 2012, and August 2012 VA examination reports.  The 

inadequacies identified by the Board in the November 2007 and April 2012 VA examination reports were clearly delineated above.  The August 2012 VA examination report is also found to be inadequate.  As discussed at many intervals during the pendency of this appeal, the Board has found that the evidence of record demonstrates that the Veteran's MOS was consistent with his contentions that he was exposed to hazardous noise.  Yet the August 2012 VA examiner cited to November 2007 VA examiner's conclusions in his rationale, reiterating that the Veteran's military occupation did not suggest routine hazardous noise level conditions.  Thus, the August 2012 VA examiner's opinion was based, in part, on an incorrect factual basis.  Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Hadsell v. Brown, 4, Vet App. 208, 209 (1993).  In addition, the Board ordered a VA examination with instructions that the examiner state whether any degree of the Veteran's current bilateral hearing loss was related to his active duty service.  In the August 2012 VA examination report, the VA examiner simply marked no when prompted to determine whether the Veteran's hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service.  For these reasons, the Board finds that the November 2007, April 2012, and August 2012 VA examination reports are inadequate for adjudication purposes and are of little probative value.

In view of the totality of the evidence, including the Veteran's documented in-service MOS, current findings of bilateral hearing loss, the decreased probative value of the opinions contained in the November 2007, April 2012, and August 2012 VA examination reports, and competent and credible reports of in-service hazardous noise exposure and continuous symptoms of bilateral hearing loss, the Board finds that bilateral hearing loss was incurred in or due to his active duty service.  Accordingly, there is a competent and credible basis to conclude that the Veteran's bilateral hearing loss was incurred in or due to his active duty service.  38 C.F.R. § 3.303.  The Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).



ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs