Citation Nr: 1305772 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 10-11 493 ) 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 ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim. He was notified of the denial and of his appellate rights in a letter from the Cleveland RO dated later in November 2008. [Due to the location of the Veteran's residence, the jurisdiction of his appeal remains with the RO in Chicago, Illinois]. As originally developed for appeal, the Veteran's claim included the additional issue of entitlement to service connection for tinnitus. This issue was considered in the rating action on appeal. It was the subject of a notice of disagreement (NOD) and was addressed in the statement of the case (SOC). However, in the substantive appeal, the Veteran specifically limited his appeal to the hearing loss issue listed on the cover page of this decision. Accordingly, consideration herein is limited to the single issue that the Veteran wishes to pursue. The case was remanded by the Board in July 2012 for additional development and readjudication. Such development having been completed, it has been returned to the Board for further appellate review. The Board also notes that recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in July 2012 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. 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 The evidence is in equipoise on the question of whether the Veteran's bilateral hearing loss is causally or etiologically related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b)(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The VCAA applies in the instant case. However, the Board's grant of service connection for bilateral hearing loss herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran seeks service connection for bilateral hearing loss. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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) (2012). Certain chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was "noted" in service with post-service continuity of the same symptomatology and medical or lay evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In other words, a Veteran can establish continuity of symptomatology in cases where he/she cannot fully establish the in-service and/or nexus elements of service connection discussed above. See also Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection). 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, 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 (2012). 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). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In the current appeal, the Veteran contends that his current bilateral hearing loss is the result of excessive noise exposure in service. See VA Form 21-526, Veteran's Application for Compensation and/or Pension dated in August 2008. Specifically, the Veteran asserts that he was exposed to repetitive engine noise during his service aboard the U.S.S. FARRAGUT. His duties as an electrician mate involved being stationed in the rear engine room working with the electric generator. His general quarters were located in close proximity to the generator as well. He maintains that he was informed that he had an ear problem shortly after his military discharge and has been wearing hearing aids, at his own expense, for the last 40 years. See Notice of Disagreement and attached statement received in January 2009. More recently, the Veteran has also stated that he sustained acoustic trauma while serving along the flight deck. See March 2010 VA Form 9. With regard to the Veteran's lay statements, the Board notes that competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012). Competent lay evidence is evidence provided by a person who has personal knowledge (that is, that he/she actually observed; derived from his/her own senses) of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, he is competent to report that he had problems hearing since service. In addition, based on the evidence submitted in support of his claim, the Board finds the Veteran to be credible with respect to his assertions. Review of the Veteran's DD-214 confirms that he was stationed aboard the U.S.S. FARRAGUT and served as an electrician during his military service. The Board has no reason to dispute the Veteran's report of in-service exposure to routine engine noise in his duties as an electrician. Therefore, his account of his in-service noise exposure appears credible and consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). Thus, noise exposure is therefore conceded. See July 2012 Board Remand. So, the question remains as to whether the Veteran currently has bilateral hearing loss that is associated with his now conceded in-service noise exposure. A finding or diagnosis of hearing loss is not shown in the Veteran's service treatment records. These records, including the April 1946 separation examination, are absent any complaints of, or treatment for, auditory disabilities. In addition, the whispered voice and spoken voice tests conducted upon separation were shown to be 15/15 in both ears. There is also no medical evidence suggesting that sensorineural hearing loss was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309 (2012). In fact, there are no pertinent clinical records associated with the claims file until a VA outpatient treatment record which shows a notation of "loss of hearing,' in November 2001, 55 years later. See VA treatment record dated November 2001. A diagnosis of moderate-severe to profound sensorineural hearing loss, bilaterally, was noted in private treatment records dated November 2007. The Veteran was afforded a VA audiological examination in February 2010. On the authorized audiological evaluation, pure tone thresholds, in decibels, were shown to be: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 105+ 105+ 105+ LEFT 65 80 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 8 percent in the right ear and 4 percent in the left. These findings meet the requirements of 38 C.F.R. § 3.385 (2012). The examiner diagnosed the Veteran with bilateral moderately-severe to profound sensorineural hearing loss from 250 to 8000 hertz. As to the question of medical nexus, she opined that the claims file contained only non-frequency audiologic information during active duty. She further noted that that this type of testing is not frequency specific and does not indicate all hearing loss, especially high frequency hearing loss. Therefore, the Veteran's hearing sensitivity during active duty, specifically at the time of discharge, is unknown and cannot be speculated. The examiner concluded that due to the lack of frequency specific audiologic records during active duty, she could not provide an opinion regarding hearing loss without resorting to mere speculation. Pursuant to the July 2012 Board remand, the Veteran was afforded another VA examination in August 2012 for the specific purpose of obtaining an opinion as to whether or not his current hearing loss could be related to service. On the authorized audiological evaluation, pure tone thresholds, in decibels, were shown to be: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 105+ 105+ 105+ LEFT 70 75 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 4 percent in the right ear and 8 percent in the left. The examiner concluded the Veteran's hearing loss was at least likely as not (50 probability or greater) caused by or a result of an event in military service. The examiner referred to the Veteran's reported noise exposure on shipboard both on duty and in his berthing area which was near the front elevator. He also noted that the whispered stimuli used at enlistment and separation had no validity for assessment purposes. He also noted that the Veteran had been advised of his hearing loss by an electronics school shortly after leaving the Navy and has struggled with hearing using hearing aids for over 40 years. The examiner concluded that the Veteran's degree of loss was much greater than would be attributed to being a residential electrician or presbycusis. The benefit of the doubt favors the Veteran. In determining whether service connection is warranted for disease or disability, VA must determine 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although hearing loss was not diagnosed until more than 50 years after service discharge, the Board is satisfied that it cannot be clearly disassociated from his conceded in-service exposure to loud noises. The Board finds the August 2012 VA audiologist's opinion, indicating that the Veteran's bilateral hearing loss is related to service, to be both probative and persuasive. That opinion was based on a thorough examination of Veteran and the claims folder and was supported by a detailed rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Moreover, the Board considers it significant that the VA audiologist's findings constitute the most recent medical evidence of record and were undertaken to directly address the issue on appeal. Furthermore, that audiologist's findings are consistent with the other clinical evidence and there are no contrary competent opinions of record. Also of particular significance to the Board is the Veteran's conceded in-service noise exposure (as is confirmed by his military duties) as well as his competent descriptions of hearing problems since service (assertions that he is competent to make). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, there is no adequate reason to reject the evidence of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, based on the totality of the evidence, the benefit of the doubt is resolved in the Veteran's favor and the Board finds that the Veteran's current bilateral hearing loss was incurred during his military service as a result of exposure to loud noises therein. Accordingly service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs