Citation Nr: 1304945 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-04 969A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's bilateral hearing loss cannot be reasonably disassociated with his active military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the Veteran's claim, because the Board is granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Moreover, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Veteran contends that service connection is warranted for hearing loss because he believes it is attributable to exposure to loud noise during military service. Specifically, he states that he was exposed to noise when he fired a Quad 50 caliber gun on maneuvers. Although the Veteran primarily served as a supply clerk, in a December 2011 statement, he recalled firing small arms, rifles, machine guns, mortars, and rocket launchers during training. He maintains that any currently diagnosed hearing loss is related to the in-service noise exposure. Although there is no official documentation of the Veteran's exposure to loud noise during military service, the Veteran's statements are competent evidence as to what he experienced through his senses in service, to include exposure to noise. The Board also finds these statements credible. His service records show that he was assigned to weapons infantry and field artillery units. Exposure to loud noise is consistent with the Veteran's circumstances of service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Accordingly, the Board finds that the Veteran's statements are competent and credible evidence as to noise exposure while in service. The Veteran's service treatment records are negative for any evidence of findings or complaints of hearing loss. Additionally, the ears portion of the December 1955 separation examination was normal. Also, whispered voice testing at that time was normal. The earliest post-service medical evidence of hearing loss was in March 2000. The Veteran underwent a private audiologic evaluation by audiologist J.H. The results showed that the Veteran had impaired hearing for VA purposes. He was subsequently treated for hearing loss with hearing aids. In October 2011, the Veteran underwent VA audiological examination in connection with this claim. The VA audiologist provided a diagnosis of bilateral sensorineural hearing loss. Audiometric testing confirmed that the Veteran has a hearing impairment for VA purposes. See 38 C.F.R. § 3.385. In light of this evidence, the current disability element of the service connection claim is met. As discussed above, the Veteran's statements are competent evidence regarding symptoms that are capable of lay observation and not of a complex medical matter. At times during the claims process, he indicated that he experienced problems with hearing during service. In a December 2010 statement, the Veteran indicated that he had hearing loss since firing weapons during service and that his hearing had diminished over the years. The Veteran's statements have been consistent, and there is no evidence to contradict his statements. Although the Veteran's hearing was reported as normal on whispered test during his service separation examination, in a Training Letter 10-02 issued in March 2010, the Director of the VA Compensation and Pension Service indicated that "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." Thus, the Board finds that the Veteran's statements that he experienced hearing problems ever since service is both competent and credible evidence. The October 2011 VA examiner reviewed the claims file and recorded the Veteran's reported history. The examination report noted that the Veteran served in the military for two years as a supply clerk around very little noise. The examiner indicated that the Veteran reported using a Quad 50 while on maneuvers on one occasion. Otherwise, the Veteran reported no routine noise exposure via military service. Based on this history, the examiner gave the opinion that the Veteran's hearing loss was "not at least as likely as not" caused by or a result of an event in military service. In contrast to the VA examiner's opinion, the March 2011 audiogram by Hearing Health included a notation that "it is our opinion that the loss could be service related." In December 2011, audiologist J.H. noted that he had treated the Veteran for a number of years and that the Veteran had bilateral sensorineural hearing loss. J.H. stated that "this hearing loss may have been affected by the noise he was subjected to in the military." The Board does not find the two private opinions probative evidence as they are speculative in nature. Service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The equivocal phrases "could be" and "may have been" are speculative and therefore the two private opinions are of little probative value. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (finding that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses may have been caused by service radiation exposure is insufficient to establish service connection); see also Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (finding that a treating physician's opinion that veteran's time as a prisoner of war could have precipitated the initial development of his lung condition found too speculative). The VA medical opinion essentially stands for the proposition that the Veteran's hearing loss is not related to in-service noise exposure because the amount of noise exposure was low. However, this opinion implied that the Veteran's hearing loss could be the result of noise exposure during service if he had more than the one instance of noise exposure from firing a Quad 50 on maneuvers. That is, the sole explanation for the opinion was that the Veteran was around very little noise as a supply clerk. Significantly, the examiner did not attribute the Veteran's hearing loss to any other cause or even imply that any other cause was a possibility (e.g., aging, ear disease, use of otoxic drugs, family history, or post-service noise exposure). The VA examiner's rationale for the opinion is inadequate because the Veteran's competent and credible statements indicate that he was exposed to loud noise during service to a greater extent than the history that was used to form the basis of the opinion. The Veteran's December 2011 statement is significant because he provided a credible history of being exposed to gunfire from many other weapons compared to the one instance of a Quad 50 caliber gun on maneuvers. Accordingly, the Board finds the VA examiner's opinion, of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises). At the very least, reasonable doubt exists as to the question of the relationship between the Veteran's hearing loss and his military service. In considering the evidence of record and when resolving reasonable doubt in his favor, the Board finds that the evidence as to whether the Veteran's current hearing loss is related to his active military service is in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.385. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs