Citation Nr: 1305745 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 12-23 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Affording the Veteran the benefit of the doubt, the currently diagnosed bilateral hearing loss is related to military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 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 I. VA's Duties to Notify and Assist The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Service Connection In general, in order to prevail on the issue of 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, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced problems hearing. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, 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 threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In September 2009, the Veteran submitted his claim for compensation, on which he indicated he had experienced bilateral hearing loss since 1978. See Veteran's Application for Compensation and/or Pension, October 2011. The Veteran claims his hearing loss is attributable to noise exposure in the military where he served as a combat engineer and was routinely exposed to noise trauma, without ear protection, from loud carpentry tools, trucks, and flight-line noise. He states he worked post-service in maintenance, but indicates he used some hearing protection. The Veteran indicated that recreational noise exposure has been from hunting, motorcycles and snowmobiles. He did not state whether or not hearing protection was used during these recreational pursuits. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. His service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's June 1975 entrance examination noted his ears were normal. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 -- 5 LEFT 25 15 15 -- 5 The Veteran's June 1978 separation examination noted his ears were normal. An audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 20 15 10 20 20 The records show that the Veteran first sought treatment for hearing difficulties in September 1999, approximately two decades after service. The Veteran's reported difficulty at that time was hearing in noise. The private treatment records include pure tone thresholds presented graphically. The Board may interpret these into numerical thresholds if able to do so. See Savage v. Shinseki, 24 Vet. App. 259, 272-73 (2011) (noting that the Board may engage in such interpretation if it felt it had the expertise); see also Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (holding that the Court cannot engage in such interpretation because it involves fact finding but that the Board, as fact finder, can). If unable to do so, VA must seek clarification or explain why such clarification is not needed. Id. The Board is able to interpret the private examination graphical results approximately. The 1999 hearing test at the Oakdale Clinic revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 30 LEFT 30 20 20 15 10 In March 2001, the Veteran received another hearing test at the Oakdale Clinic. The test revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 25 30 LEFT 20 15 20 -- 15 A November 2008 treatment note by the Veteran's doctor states that "[the Veteran] has had problems with his right ear over the last 20 years or so." See Oakdale Ear, Nose, and Throat Clinic (Oakdale Clinic), Treatment Notes, November 2008. In January 2009, the Veteran received another hearing test at the Oakdale Clinic. Pure tone thresholds were presented graphically, but the examiner interpreted them as showing a mixed primarily right sensorineural hearing loss; centered in the mid frequency ranges. The diagnostic impression was right sensorineural hearing loss following a severe bout of otitis media. In October 2009, the Veteran received two hearing tests at the Oakdale Clinic of the right ear only which were interpreted as showing progressive right-sided sensorineural hearing loss moderately severe in nature. The diagnostic impression was unilateral progressive sensorineural hearing loss. In February 2010, the Veteran received a hearing test from a private doctor at the University of Minnesota Medical Center, Fairview (Fairview Center). Again, the pure tone thresholds were presented graphically. The examiner noted that the Veteran had experienced a gradual decrease in hearing in his right ear for approximately 15 years. The examiner diagnosed the Veteran with mild sensorineural hearing loss primarily in the "lows/mids" in the left ear and mild sloping to severe mixed hearing loss in the right ear. In March 2010 at the Fairview Center, the Veteran had surgery on his right ear involving an exploratory tympanotomy and repair of an oval window perilymphatic fistula. The doctor performing the surgery noted that in the Veteran's right ear he had an apparent fracture in the squamous portion of the tympanic ring. In May 2010 and April 2011, hearing tests at the Fairview Center continued to show the Veteran was experiencing bilateral hearing loss. In May 2010, the examiner found the Veteran had low frequency mild sensorineural hearing loss in the left ear and moderate to severe mixed, primarily sensorineural hearing loss in the right ear with poor word understanding. In April 2011, the examiner found the Veteran had mild sensorineural hearing loss in the left ear and moderate to severe primarily sensorineural hearing loss in the right ear with poor word recognition in the right ear but good word recognition in the left ear. Thereafter, in February 2012, the Veteran underwent a VA audiological examination. The examiner noted the Veteran's in-service noise exposure, onset of hearing loss around his time of service, his normal audiogram upon discharge from service, but also the significant threshold shift that occurred in the Veteran's left ear at 4000 Hz between induction and discharge. Specifically, the Veteran's hearing in his left ear at 4000 Hz underwent a 15 dB threshold shift from 5 dB at induction to 20 dB at discharge. The VA hearing test revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 85 85 90 85 LEFT 45 30 35 35 35 Speech audiometry per the Maryland CNC Test showed speech recognition ability of 94 percent in the right ear and 100 percent in the left ear. The Veteran was diagnosed with moderately severe to severe sensorineural hearing loss in the right ear and mild sensorineural hearing loss in the left ear. Following an examination and review of the Veteran's claims file, including service treatment records (STRs), the VA examiner opined that due to the in-service threshold shift in the Veteran's left ear and lack of testing at 3000 Hz of the right ear at induction, the Veteran's hearing loss was at least as likely as not (50/50 probability) caused by or aggravated by his military noise exposure. The examiner also opined that given similar onset time of both the Veteran's tinnitus and hearing loss, tinnitus is as likely as not associated with the Veteran's hearing loss. In a February 2012 rating decision, the Veteran was granted service connection for tinnitus. In April 2012, the RO requested another VA audiological opinion based on the medical evidence received from the Fairview Center and Oakdale Clinic. A new examination was not performed. The VA audiologist noted the Veteran's normal bilateral hearing on induction and discharge and the significant threshold shift that occurred in the Veteran's left ear at 4000 Hz between induction and discharge. The examiner also commented that the Veteran's hearing in both ears was within normal limits by VA standards in 1999. Thus, the audiologist found that there was no permanent threshold shift in the left ear from the time of military induction (5 dB) to his September 1999 audiogram at Oakdale Clinic (10 dB). The audiologist opined that the shift seen at discharge in the left ear was most likely due to a temporary threshold shift of some sort (canal collapse under earphones, noise exposure prior to testing, temporary middle ear issue, ear wax, for example). With regard to the left ear, the audiologist opined that given normal hearing on discharge and no clinically significant threshold shift in-service or when compared to the September 1999 audiogram, left ear hearing impairment is less likely as not (less than 50/50 probability) caused by military noise exposure. For the right ear, the audiologist stated that, given normal hearing on discharge and no clinically significant threshold shift in-service, the Veteran's right ear hearing impairment is less likely as not (less than 50/50 probability) caused by military noise exposure. The audiologist further stated that present hearing loss in the right ear is known to be mostly caused by a medical condition (perilymph fistula) and/or subsequent related ear surgery. Supporting research for the opinion was from the 2005 Institute of Medicine Report, which states the understanding of mechanisms and processes involved in recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). As stated above, the Veteran claims that his hearing issues began in 1978 and have continued to the present time. See VA Examination, February 2012; see also Veteran's Application for Compensation and/or Pension, October 2011. Additionally, the Veteran's sister submitted a statement that upon the Veteran's return from military service in 1978, she noticed he had a hearing loss and that his hearing has progressively worsened over the years. See Letter from L.D., June 2012. These consistent lay statements are competent evidence regarding the onset and continuing symptomatology of the Veteran's hearing loss since 1978. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. However, lay statements alone are not sufficient to prove a VA hearing disability, which requires findings based on puretone thresholds in decibels or the Maryland CNC test. See 38 C.F.R. § 3.385. The February 2012 VA audiogram shows that the Veteran meets the VA requirements of a bilateral hearing loss disability based on pure tone thresholds. See 38 C.F.R. § 3.385. Additionally, both VA examiners and doctors at the Fairview Center have found the Veteran to have bilateral sensorineural hearing loss. After review of the evidence, the Board finds that service connection is warranted for the Veteran's bilateral hearing loss based on the competent and credible evidence that the Veteran's hearing loss is causally related to service. The Board acknowledges that the record includes a negative nexus opinion from a VA audiologist, which was based, in part, on the fact that the Veteran's bilateral hearing was normal upon discharge and there was no significant threshold shift in service or when compared to an audiogram conducted in 1999. The audiologist failed to consider the Veteran's credible statements that he experienced hearing loss in 1978 and the VA's concession that the Veteran was exposed to acoustic trauma in-service. Further, the VA audiologist found the Veteran's current right ear hearing disability is "mostly" caused by perilymph fistula and related ear surgery, without providing any support for this finding and not considering the Veteran's medical records showing right ear complaints dating back to 1988. Evidence in support of the Veteran's claim includes medical evidence that demonstrates he has a current bilateral hearing loss disability; that he was exposed to acoustic trauma in service; that he experienced a threshold shift in-service in his left ear; that he experienced hearing loss since 1978; that his sister noticed his decreased hearing acuity upon discharge in 1978 and his hearing has progressively worsened over the years. Finally, the April 2012 VA opinion noted that that present hearing loss in the right ear is known to be mostly caused by a medical condition. That leads the Board to conclude that a portion of the hearing loss is not caused by a medical condition. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. Thus, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs