Citation Nr: 1304034	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  11-33 056	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1957 to June 1960.  He retired from the Air National Guard in July 1979.  His service included occupational duties in high performance jet aircraft.

This matter comes before the Board of Veterans' Appeals from a March 2011 rating decision of the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.  

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 reasonable doubt in the Veteran's favor, a bilateral ear hearing loss disability is related to in-service noise exposure. 


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor a bilateral hearing loss was incurred inservice.  38 U.S.C.A. §§ 101(24), 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  In light of the fact that the Board allows the benefit sought, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be warranted 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).  

Sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Generally, a disability will be service-connected if it was incurred or aggravated in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303 (2012).  Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a).  ACDUTRA is, inter alia, full-time duty in the Air National Guard under 32 U.S.C.A. §§ 316, 502, 503, 504, 505.  38 U.S.C.A. § 101(21), (22); 38 C.F.R. § 3.6(c)(3).  Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).

For VA purposes, 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. 

In adjudicating a claim for VA benefits, 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 the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Veteran contends that he is entitled to service connection for bilateral ear hearing loss due to acoustic trauma incurred while working aboard loud jet aircraft.  The Veteran's DD Form 214 lists service as a radar intercept officer.  The Veteran's descriptions of his work in service, which are confirmed by the data within his service treatment and personnel records, show that he worked on jet aircraft crews throughout his three years of active duty service and during his service in the Air Force National Guard.  The Veteran's serious noise exposure during service has been noted by all audiological opinions of record and is conceded by the Board.  In May 2010 the Veteran was granted service connection for tinnitus due to its likely nexus to in service jet engine noise exposure.

The Board notes that the Veteran's service includes a period of active duty service followed by 19 years in the Air National Guard, which included various periods of unverified ACDUTRA and INACDUTRA.  The majority of the Veteran's in service noise exposure is likely to have occurred during his three years of active duty service.  The Veteran's records show that during his Air National Guard service he continued to serve on jetfighter missions, which the Board finds to be sufficient evidence to conclude that he experienced an in-service acoustic traumatic injury sufficient to cause hearing loss during his ACDUTRA and INACDUTRA military service.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The Board will therefore consider the Veteran's periods of both active duty and Air National Guard service together when evaluating the Veteran's claim for service connection for hearing loss.

The Veteran's service treatment records include 28 sets of audiological testing results, spanning from the Veteran's time in the Air Force Reserve Officers' Training Corps in 1955, through active duty from 1957 to 1960, until his final year in the Air Force National Guard in 1979.  Although there is slight variation within the test results, none of the 28 audiological testing results show hearing outside of normal limits.  While relevant to the current appeal, the Board notes that the absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  In this regard, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) 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.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303(d).

The evidence shows that the Veteran's in-service noise exposure included years of exposure to jet noise, as well as exposure to noise associated with the crash of a jet aircraft, and noise associated with the appellant's ejection from that same aircraft. 

In March 2011 the Veteran was afforded a VA audiological examination.  The examiner noted that the Veteran had a history of noise exposure in service, including over 4000 hours of flight time and exposure to loud jet engines on the flight line without any hearing protection.  Audiometric testing revealed pure tone thresholds, in decibels, as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT EAR
20
20
20
30
40
LEFT EAR
20
20
20
40
45

Speech recognition testing revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear.  While the audiometric test results indicated that the Veteran did meet the threshold for a hearing loss disability under 38 C.F.R. § 3.385, the examiner indicated that because there was no significant shift in thresholds from the time of induction to service to his discharge from service, the appellant's hearing loss was less likely than not the result of his military service.  The examiner did not provide any further explanation of his findings or discussion of the Veteran's past audiology examination reports.

The Veteran has submitted a May 2011 report from Rolf Ulvestad, M.D.  Dr. Ulvestad has written that the Veteran flew on jetfighters from 1958 to 1979 and had no significant noise exposure after service.  While the physician did not have access to the claims file, his report indicates that he discussed the Veteran's medical and audiological history with the appellant, and the report provided is consistent with the other evidence of record.  The examiner found normal hearing through 2000 Hertz, but that hearing "drops off precipitously above 2000."  Dr. Ulvestad opined that the Veteran's hearing loss was "most likely the bi-product of military noise exposure."

In November 2011 VA received a follow-up medical opinion from a VA physician who stated that based on a review of the Veteran's discharge examination and discharge from Reserve service examination, the Veteran's hearing loss was not caused or aggravated by his active duty or Reserve service.  The physician supported this assertion with excerpts from the Institute of Medicine which stated that the most pronounced effects of noise exposure will be measurable immediately after exposure.

The March 2011 audiometric testing results indicate that the Veteran currently has bilateral hearing loss to an extent recognized as a disability, pursuant to 38 C.F.R. § 3.385.  The remaining question is whether such current  hearing loss is medically related to service.  The record includes conflicting opinions regarding whether the Veteran's current bilateral hearing loss is medically related to his in-service noise exposure.  

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

In this case, the Board finds that all medical opinions of record were submitted by competent medical professionals who either had access to the claims file and medical records or, in the case of the May 2011 private physician, were aware of the Veteran's medical history sufficient to make an informed judgment on the etiology of his hearing loss.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion may not be discounted solely because the examiner did not review the claims file).  The March 2011 VA examination, although based on a thorough examination of the Veteran, provided no explanation of examiner's ultimate conclusion.  The November 2011 follow-up opinion, provided by a physician who did not perform a personal examination of the Veteran, but rather offered to provide some explanation for the earlier finding, is not considered to be a separate independent opinion, but rather is an addendum to the March 2011 opinion to provide an explanation that was previously lacking.  Together, they form a competent and persuasive opinion which is at odds with the other competent and persuasive opinion of record, i.e., the May 2011 opinion of Dr. Ulvestad.

As the two competent but contrary opinions which directly address the etiology question are entitled to, essentially, equal probative weight, the Board finds that the evidence for and against the claim is relatively evenly balanced, or, in other words, in relative equipoise.  Hence, the benefit of the doubt in resolving the issue shall be given to the claimant.  38 U.S.C.A. § 5107(b).  As such, entitlement to service connection for hearing loss is granted.


ORDER

Entitlement to service connection for hearing loss is granted.


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs