Citation Nr: 1304657 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-36 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from August 1956 to August 1960, from June 1961 to November 1967, and from August 1971 to February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing held at the RO in July 2012. A transcript of the proceeding is associated with the claims file. At such time, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in favor of the Veteran, bilateral hearing loss is etiologically related to noise exposure during active military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 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, 1131; 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 not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and 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, 1137; 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). At his July 2012 hearing and in documents of record, the Veteran claims to have hearing loss due to noise exposure in the Navy, including from jet aircrafts and gunfire from the large guns mounted on the flight deck. In this regard, the Board finds that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, such contentions are consistent with the Veteran's many years of service in the aviation field while in the Navy. 38 U.S.C.A. § 1154(a). Therefore, the Board finds that the Veteran has competently and credibly testified to his in-service noise exposure. The Veteran's service treatment records generally document increasing levels of hearing loss in service. In July 1971, a medical provider found the Veteran to have high frequency hearing loss of the left ear. The August 1994 retirement physical also included audiometric testing reflecting a decrease in hearing in the higher frequencies. However, none of the service treatment records show hearing loss findings that would be considered to be a disability level for VA purposes under 38 C.F.R. § 3.385. Following the Veteran's February 1987 separation from service, an October 1987 employment physical examination for the National Aeronautics and Space Administration (NASA) reflected a diagnosis of bilateral high frequency hearing loss based on audiometric testing. However, those findings also did not meet VA disability levels under 38 C.F.R. § 3.385. Subsequently, a July 2003 NASA record documented impaired hearing levels that met those VA standards. Subsequent hearing studies also repeatedly documented levels of hearing loss consistent with 38 C.F.R. § 3.385. The Veteran received a VA examination in April 2009, which included a claims file review. The examiner noted that the Veteran had difficulty understanding speech and in-service noise exposure to aircraft carriers, catapult launchers, aircraft elevators and naval air stations. The April 2009 threshold results, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 5 10 35 50 25 LEFT 5 10 45 55 29 The examiner found the Veteran to have achieved a score of 100 percent for word recognition bilaterally. For the right ear, the examiner found hearing within normal limits from 250 to 2000 hertz (Hz) and mild sloping to moderately-severe sensorineural hearing loss from 3000 to 8000 Hz. For the left ear, the examiner found hearing within normal limits from 250 to 2000 Hz and moderate sloping to moderately-severe sensorineural hearing loss from 3000 to 8000 Hz. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The April 2009 VA examiner opined that the Veteran's bilateral hearing loss was less likely as not a result of noise exposure during military service, since his hearing was within normal limits for rating purposes on his discharge audiogram. The Veteran received another VA examination in February 2010, which included a claims file review. The examiner noted a similar history of noise exposure and difficulty understanding speech as the April 2009 VA examiner. The February 2010 threshold results, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 0 10 35 40 21 LEFT 10 5 30 40 21 The examiner found the Veteran to have achieved a score of 100 percent for word recognition bilaterally. For the right ear, the examiner found hearing within normal limits from 250 to 2000 Hz and mild to moderate sensorineural hearing loss from 3000 to 8000 Hz. For the left ear, the examiner found hearing within normal limits from 250 to 2000 Hz and mild to moderately-severe sensorineural hearing loss from 3000 to 8000 Hz. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The February 2010 VA examiner reported that an opinion regarding service connection for hearing loss would be based on speculation since a whisper test was provided at the time of the Veteran's enlistment and that such tests do not provide frequency or intensity specific information. The Veteran also provided an April 2010 private medical opinion and audiogram from audiologist C.D. Caudle. Ms. Caudle found the Veteran to have mild to severe high frequency sensorineural hearing loss in both ears. She noted the Veteran's history of noise exposure in service and indicated that she had reviewed his service treatment records. She found that the service treatment records documented decreased hearing throughout his service and mild high frequency hearing loss in the left ear upon separation. Based upon her review of the service treatment records and interview of the Veteran, she opined that it was more likely as not that his hearing loss was caused by or contributed to by his in-service noise exposure and/or in-service acoustic trauma. The Veteran has also provided numerous statements, including at his July 2012 Board hearing testimony, wherein he has reported hearing loss in service, including as due to exposure to jet engine and gunfire noise. He also denied post-service noise exposure and recreational noise exposure. At the July 2012 hearing, his spouse also reported witnessing symptoms of the Veteran's hearing loss while she was married to him in service. As indicated previously, the Veteran had in-service noise exposure and his service treatment record document a decrease in his hearing. Additionally, he has a current diagnosis of bilateral hearing loss per VA regulations. The Board has first considered whether service connection for bilateral hearing loss on a presumptive basis is warranted. However, he record fails to show that the Veteran manifested hearing loss to a degree of 10 percent within the one year following his service discharge in February 1987. In this regard, while his October 1987 NASA examination reflected a diagnosis of bilateral high frequency hearing, such did not meet VA's definition of hearing loss pursuant to 38 C.F.R. § 3.385. As such, presumptive service connection is not warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Therefore, the remaining inquiry is whether his bilateral hearing loss is directly related to his in-service noise exposure. In this regard, the Board finds the evidence of record to be in relative equipoise as to whether the Veteran's bilateral hearing loss disability developed due to his in-service noise exposure. The April 2009 VA examiner opined that his bilateral hearing loss was less likely as not due to service, but the February 2010 VA examiner opined that he could not make such an opinion as it would be speculation on his part. In contrast, in April 2010, Ms. Caudle found that it was more likely as not that his hearing loss was caused by or contributed to by his in-service noise exposure and/or acoustic trauma. The Board also notes that the Veteran's service treatment records reflect a decrease in his hearing acuity during service. Moreover, the Veteran and his spouse competently and credibly testified to his difficulty hearing in service that has continued to the present time. Therefore, in light of the conflicting medical opinions, evidence of decreased hearing acuity in service, and the competent and credible lay testimony reflecting a continuity of symptomatology since the Veteran's separation from service, the Board resolves all doubt in his favor and finds that bilateral hearing loss is etiologically related to noise exposure during active military service. Therefore, service connection for such disability is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs