Citation Nr: 1303983 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-06 047 ) 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 WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to November 1968 with additional subsequent service with the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the above claim. The Chicago RO continued the previous denial in an October 2007 rating decision. In February 2012, the Veteran and his wife testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims folder. At the February 2012 hearing, the Veteran explained that he only sought to appeal the RO's denial of his claim for entitlement to service connection for bilateral hearing loss, as indicated on his December 2009 formal appeal, and did not wish to appeal the denial of his claim seeking a higher initial rating for service-connected tinnitus, even though this issue was still listed and discussed in the December 2011 Supplemental Statement of the Case (SSOC). As the Veteran has clearly stated that he did not appeal the RO's assignment of an initial 10 percent disability rating for service-connected tinnitus, and specifically excluded this issue in his written formal appeal, this issue is not before the Board. See generally 38 U.S.C.A. § 7105(d)(3) (West 2002 & Supp. 2012); Rivera v. Shinseki, 654 F.3d 1377, 1381 (Fed. Cir. 2011). FINDING OF FACT The Veteran's bilateral hearing loss was incurred in, or caused by, his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for bilateral hearing loss. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The Veteran contends that he incurred his current bilateral hearing loss during his period of active service aboard the USS Niagara Falls. The Veteran describes noise exposure aboard the ship from sleeping beneath the ventilation for the motor and fan that provided the heating and ventilation for the entire ship; manning a watch station in the engine room with turbines, fans, and force draft fans that created enough noise to require conducting all phone conversations in a sound proof booth; and manning a damage control station under a pair of 3 inch / 50 caliber naval guns. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, 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, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). A disease diagnosed after service may still be service connected when the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In addition, service connection may be presumed for certain chronic diseases, including organic diseases of the nervous system such as hearing loss, which are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 113; 38 C.F.R. §§ 3.307, 3.309(a). A disorder may also be service connected if the evidence shows that the Veteran currently has a disorder that was chronic in service or currently has a disorder that was noted in service with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). However, under VA regulations, impaired hearing is only considered a ratable 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. When evaluating a claim for disability benefits, VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). A layperson may be competent to testify to the manifestations of a chronic condition or to continuity of symptomatology. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A lay witness is competent to testify to the occurrence of an in-service injury or incident where the issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Once evidence is determined to be competent, the Board must assess its credibility. In assessing the credibility of the evidence, the Board may properly consider facial plausibility, internal consistency, consistency with the other evidence of record, the demeanor of the witness if oral testimony is given, self-interest, and possible bias. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Gardin v. Shinseki, 613 F.3d 1374, 1379-1380 (Fed. Cir. 2010); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Pond v. West, 12 Vet. App. 341, 345-47 (1999). Then, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana, 24 Vet. App. at 433. In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). For example, the Board may favor the opinion of one competent medical expert over another as long as it articulates understandable and valid reasons for doing so. Parrish v. Shinseki, 24 Vet. App. 391 (2011). In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient and accurate facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (citing Fed. R. Evid. 702); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, medical experts must provide the sort of factually accurate, fully articulated, and sound reasoning that allows the Board to assess whether the conclusion provided is the product of valid medical analysis applied to the significant facts of the particular case. Nieves-Rodriguez, 22 Vet. App. at 304. In other words, a probative medical opinion will contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Id. at 301, citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Here, a March 2012 VA audiogram shows that the Veteran has bilateral hearing loss as defined by 38 C.F.R. § 3.385 as his auditory threshold at 4000 Hertz was recorded at 50 decibels for both ears. A January 2010 private treatment note shows a diagnosis of normal hearing through 2000 Hertz bilaterally, sloping to moderate-severe sensorineural hearing loss from 3000 Hertz to 8000 Hertz, bilaterally. The Veteran's lay testimony on the extent and type of his noise exposure in service, which is consistent throughout the record and corroborated by his DD-214 showing service aboard the USS Niagara Falls, constitutes competent and credible evidence establishing noise exposure in service from sleeping underneath the ventilation for the motor and fan that provided heating and ventilation for the ship; manning a watch station in the engine room with turbines, fans, and force draft fans that created so much noise that all phone conversations had to be conducted in a sound proof booth; and manning a damage control station under a pair of 3 inch / 50 caliber naval guns without hearing protection. See Charles v. Principi, 16 Vet. App 370, 374 (2002) (holding that the Veteran is competent to testify to in-service acoustic trauma); Grottveit, 5 Vet. App. at 93 (1993); see also Caluza, 7 Vet. App. at 511 (providing examples of factors the Board may consider in assessing credibility). In October 1968, the Veteran sought treatment in service for ringing of the ears for the past four days and an ear ache. A separation examination was also conducted in October 1968, but the only audiological data reported is in the form of whisper voice test data. The whispered voice test is a subjective and relatively blunt measure of hearing loss that cannot measure audiometric threshold shifts, establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, or capture hearing loss that may have begun in service following acoustic trauma. The United States Court of Appeals for Veterans' Claims (Court) has determined that where the Veteran's audiometric test data shows results reflecting an upward shift in tested thresholds in service, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service even if the hearing loss recorded on the separation examination would not meet the requirements for a disability under 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 159. Clearly, no such consideration is feasible where the audiological data available is not capable of showing audiometric threshold shifts, as with the whispered voice test. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (holding that 38 C.F.R. § 3.385 cannot apply to the diagnosis rendered on a separation physical examination because the examination is incomplete and there is no indication whether or not appellant's hearing met the thresholds for the cited frequencies). Therefore, the whisper voice test data is of little probative value in this case. A private audiogram from March 1982 shows some high frequency hearing loss of the left ear at 4000 Hertz, with a hearing threshold of approximately 25 decibels, and at 8000 Hertz, with a hearing threshold of approximately 40 decibels. Reference audiograms from the Veteran's service with the U.S. Navy Reserve dated August 1995 and September 1997 also show high frequency hearing loss in the left ear at 6000 Hertz. In September 2007, the Veteran was provided with a VA examination. Decreased hearing was seen only at 4000 Hertz, bilaterally, of the frequencies that are ratable under 38 C.F.R. § 3.385. The diagnosis provided is bilateral mild to moderately severe sensorineural hearing loss at 4000-8000 Hertz, indicating that, as explained in the examination report, hearing thresholds at frequencies higher than 4000 Hertz reached levels of 55 to 69 decibels. The Veteran described his hearing loss as "gradual" and explained that it seemed to fluctuate depending on the severity of his tinnitus. The examiner provided the opinion that the Veteran's hearing loss was not related to service as his whisper test at discharge was normal and audiometric testing in July 1982 and October 1989 show normal hearing thresholds through 8000 Hertz bilaterally. The examiner concluded that hearing loss must have occurred after October 1989 and explained that the Department of Defense has concluded that there is no scientific basis for delayed or late-onset noise induced hearing loss. Conversely, a private treatment record dated in October 1989 notes the presence mild high frequency hearing loss, and this record is from the same exact date as the audiogram referred to and relied upon by the VA examiner. However, no companion audiogram is of record. Furthermore, the VA examiner relied on the whisper voice test data without providing a rationale for doing that would allow the Board to determine whether the opinion was the product of the application of reliable principles. See Nieves-Rodriguez, 22 Vet. App. at 302. Therefore, as the VA examiner's opinion is based on demonstrably inaccurate facts and does not contain the reasoning necessary to determine whether an opinion based on the whisper voice test can have any probative value, the Board accords little weight to this opinion. Id. In a January 2010 treatment record, a private Doctor of Audiology noted the Veteran's history of noise exposure in the Navy and, as noted above, found that the Veteran had moderate to severe sensorineural hearing loss from 3000 to 8000 Hertz bilaterally. The doctor of audiology also explained that his "findings would suggest it is quite possible that noise exposure may have contributed to this sensorineural hearing loss." Although he could not make this determination with absolute certainty, he found that noise exposure "is more than likely a source of some of his hearing loss." In context, this opinion links the Veteran's hearing loss to his military service; noise exposure in service is the only type discussed in this treatment note, and the Veteran denies any other significant noise exposure. As the January 2010 opinion was provided by a specialist upon consideration of the nature of the Veteran's high-frequency sensorineural hearing loss, the Board finds this medical opinion to be probative. Furthermore, in February 2012, the Veteran's wife testified that she noticed the Veteran's hearing problems back in 1969 or thereabouts, before they were married in 1971. The Veteran also testified to the onset of hearing difficulties prior to 1981. These statements and the Veteran's description of gradually worsening hearing loss that varies with the severity of his tinnitus are corroborated by the audiometric data in the record, where data showing audiometric threshold shifts is available. The statements are also broadly consistent with each other, but not precisely the same, which lends further credibility to the statements. See Caluza, 7 Vet. App. at 511. Furthermore, the Veteran and his wife are competent as laypersons to testify to his symptoms of decreased hearing. See Charles, 16 Vet. App at 374. This competent and credible lay evidence establishing a long history of gradually worsening hearing loss lends additional weight to the positive January 2010 medical opinion, placing the record at least in equipoise on the issue of whether the evidence establishes a nexus between the Veteran's current hearing loss and his acoustic trauma in service. Consequently, any doubt will be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. As the evidence of record shows a diagnosis of bilateral hearing loss that meets the requirements of 38 C.F.R. § 3.385; acoustic trauma from noise exposure aboard the USS Niagara Falls; and, resolving any doubt in favor of the Veteran, an etiological relationship between the Veteran's currently diagnosed hearing loss and the noise exposure in service, service connection for bilateral hearing loss is warranted. See 38 C.F.R. § 3.303(a), (b); Shedden, 381 F.3d at 1167; Barr, 21 Vet. App. at 307; Savage, 10 Vet. App. at 496-497; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs