Citation Nr: 1303097	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  10-45 708	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


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

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from July 1959 to December 1979. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for hearing loss.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Resolving the benefit of the doubt in favor of the Veteran, the Veteran's bilateral hearing loss is due to acoustic trauma sustained in service.


CONCLUSION OF LAW

A bilateral hearing loss disability was incurred during active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As the Board's decision to grant the Veteran's claim of entitlement to service connection for bilateral hearing loss is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 

The Veteran contends that in-service noise exposure resulted in his current bilateral hearing loss.  He contends that he has suffered from hearing loss ever since service.  The Veteran is currently in receipt of service connection for tinnitus on a direct basis.

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 granted with evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of 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; 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). 

Service treatment records reflect that in January 1962, the Veteran's hearing was as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
5
LEFT
0
0
0
0
0

In September 1979, the Veteran's hearing was as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
5
LEFT
0
0
5
5
10

Thus, there appears to have been a shift in hearing from 1962 to 1979, indicating some slight decreased hearing while in service.

Post-service treatment records reflect on May 2010 VA examination, the Veteran reported working as a dentist while in service and after service, with recreational noise exposure being woodworking.  Audiometric testing at the time of the examination revealed hearing loss that meets VA definition of hearing loss as a disability.  See 38 C.F.R. § 3.385.  After reviewing the claims file, the examiner concluded that it was less likely than not that the Veteran's hearing loss was caused by his service, stating that despite the decrease in hearing shown in service, that decrease was not considered to be disabling according to VA criteria.

In November 2010, the same VA examiner reviewed the file once more and explained that despite the change in thresholds in hearing from entrance to separation, such change was not significant enough in range to meet the requirements of service connection.  Also, the Veteran's military occupational specialty was not one that would typically expose him to prolonged exposure to high risk noise.

In this case, although the Veteran's DD-214 states no foreign service, he was awarded the Legion of Merit with Combat V, indicative of his participation in combat or assisting in a combat mission.  Moreover, his service personnel records demonstrate that he was stationed in Vietnam during the Vietnam war.  Thus, despite that his military occupational specialty was that of "prosthodontis and maxillofacial," the Board finds that his statements that he was exposed to acoustic trauma in service are consistent with his combat exposure and/or Vietnam service.  Therefore, the Board finds that it is likely that the Veteran was exposed to acoustic trauma during his 20 years of active service, and that exposure is conceded.

Therefore, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure.  The Board has first considered whether service connection is warranted on a presumptive basis.  In this regard, although the Veteran states that he had hearing loss since service, there is a lack of medical evidence to show that he had hearing loss within the one year period following service.  As such, presumptive service connection is not warranted for bilateral hearing loss.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

However, the Board finds that service connection for hearing loss is warranted on a direct basis.  In that regard, the Board finds that the May 2010 and November 2010 VA examinations are flawed because the examiner, both times, based the conclusion reached on the fact that the Veteran did not have hearing loss in service that was severe enough to meet the criteria set by VA for a hearing loss disability.  However, as stated in Hensley, supra, a lack of such hearing loss in service does not preclude service connection.  At the same time, the examiner did acknowledge that the Veteran had hearing loss while in service.  Moreover, the examiner did not take into consideration the Veteran's awards and decorations, as described above, stating only that his specialty as a dentist would not expose him to acoustic trauma.  Therefore, the Board finds that the opinions are inadequate and hold no probative weight because they do not discuss his combat noise exposure.  Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

On the other hand, the Veteran is competent to state that he has noticed hearing loss in service and since service, because such symptoms are capable of lay observation.  Moreover, he was awarded a military decoration demonstrating assistance in combat and the service treatment records show a shift in hearing thresholds while in service.  Thus, the Board finds that the Veteran is both competent and credible to state that his hearing loss began while in service and has continued since service, because such is consistent with his service and shown in the service treatment records, as confirmed by the VA examiner.  Finally, his service treatment records show that he complained of tinnitus, an indication of possible noise exposure, and he is currently in receipt of service connection for tinnitus.  When weighing the evidence of record, the Board finds that it is at least in equipoise.  Therefore, the Board will resolve all reasonable doubt in the Veteran's favor and find that service connection for bilateral hearing loss is warranted.  38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert, supra.



ORDER

Service connection for bilateral hearing loss is granted. 



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs