Citation Nr: 1302344 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 08-30 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1971. 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 Seattle, Washington (RO). The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in October 2010. A transcript of the proceeding is associated with the record. In March 2011 and December 2011, the Board remanded the issue for further evidentiary development. The case has now been returned to the Board for appellate review. After the March 2012 supplemental statement of the case was issued, the Veteran submitted additional evidence directly to the Board with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2012). The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. FINDING OF FACT The medical evidence is in equipoise on the question of whether the Veteran's currently demonstrated bilateral hearing loss disability began in or is otherwise causally related to his military noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as sensorineural hearing loss (as an organic disease of the nervous system), if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). 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). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence shows that the Veteran served on active duty for a total of approximately two years with the Navy, including aboard the USS Bennington. His assertions of noise exposure are credible and consistent with the circumstances of his service. There is no entrance examination report. Upon separation examination in January 1971, an audiogram revealed puretone thresholds of 5, 0, 0, 0, 0 and 10 decibels in the right ear and 5, 0, 0, 5, 15 and 25 decibels in the left ear at 500, 1000, 2000, 3000, 4000 and 6000 hertz, respectively. No hearing loss disability was noted. Post-service treatment records show that in April 1999, the Veteran experienced plugging and hearing loss on the left side, with accompanying vertigo and nausea. Audiometric evaluation showed sensorineural hearing loss in the left ear. Because the Veteran was diabetic, it was thought that he was experiencing a hydrops-like incident with associated hearing loss and vertigo. In July 2008, audiometric testing revealed right ear hearing loss that might be consistent with noise exposure and left ear hearing loss that might be consistent with labyrinthitis. In December 2011, the Board found that an April 2011 VA examination report and June 2011 addendum were inadequate for rating purposes. The Veteran was afforded another VA examination in January 2012. An audiogram revealed puretone thresholds of 10, 15, 20, 30, and 40 decibels in the right ear and 35, 40, 60, 60 and 65 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 hertz, respectively. The diagnosis was mild high-frequency sensorineural hearing loss in the right ear and mild to moderately-severe sensorineural hearing loss in the left ear. After reviewing the file, the examiner opined that it was less likely that the Veteran's currently manifest hearing loss was due to noise exposure in service because he did not demonstrate hearing loss at separation, and the noise exposure stopped at that time because he was discharged from military service. The Veteran submitted a private medical report dated in October 2012. After reviewing the Veteran's clinical records, the audiologist opined that it was at least as likely as not that the Veteran's hearing loss was associated with acoustic trauma experienced during military service based on the Veteran's reports of the noise exposure and tinnitus shortly after the exposure, which most likely damaged hair cells in the cochlea. It does not appear that the Veteran's hearing was tested upon entrance to service. Additionally, he clearly did not have hearing loss by VA standards at the time of his separation examination, although there was one decibel reading in excess of 20 in the left ear recorded, which has been found to be a demonstration of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing loss by VA standards has clearly been demonstrated now, and there are two contrasting opinions regarding the question of whether the Veteran's military service acoustic trauma caused the current disability. The Board finds that the evidence is in relative equipoise. Therefore, resolving reasonable doubt in favor of the Veteran, the Board concludes the Veteran's current hearing loss disability was incurred during his active service, and service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (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