Citation Nr: 1306015 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-16 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to November 1953, with a period of active duty for training in June 1951. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for bilateral hearing loss. In a March 2011 decision, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), a February 2012 Order of the Court remanded the claim for readjudication in accordance with the Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). See 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is at least as likely as not that the Veteran's bilateral hearing loss was caused by acoustic trauma during a period of active duty for training. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service during a period of active duty for training. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (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 benefits 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; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of 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; 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. Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training while in the line of duty, or from injury incurred or aggravated while performing inactive duty training while in the line of duty. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). Active duty also includes any periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). 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 (2012). The Court has held that service connection can be granted for 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 active service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for 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). The Veteran contends that his current bilateral hearing loss was caused or aggravated by his service. Specifically, he contends that while on a two week cruise in 1950, when he was on active duty for training, his ears were injured by a firing exercise after which he experienced ear pain, bleeding from the ears, and pus draining from the ears. He contends that upon arrival in port, he was taken to the hospital but was not treated because he was not on active duty. Thereafter, he was treated at a private hospital for two weeks. He contends that he has suffered from hearing loss since the in-service injury. Service treatment records reflect that on June 1948 pre-enlistment examination, the Veteran was noted to have 15/15 hearing for both the left and right ear. In June 1951, while on active duty for training, the Veteran was seen with complaints of left ear pain following a gunnery exercise. A diagnosis of acute left otitis media was rendered. The Veteran was prescribed medication at that time. The records indicate that the Veteran had received treatment at the Doyle-Currey clinic after returning home in Chattanooga, Tennessee. In December 1951, the Veteran was again noted to have 15/15 bilateral hearing on spoken and whispered voice testing. On a December 1951 report of medical history, the Veteran did not report having any ear or hearing problems. In January 1952, the Veteran was again noted to have bilateral 15/15 hearing. On his January 1952 report of medical history, the Veteran checked the "yes" box when asked if he had or had ever had ear, nose, or throat trouble. The Veteran wrote that he was in good health except for "occasional ear irritation which became infected on a two week training cruise." In the explanation section, it was noted that the Veteran had had acute otitis media in June 1951. The reviewing clinician wrote that the injury resulted from a concussion of three-inch 50 mm guns, and required the Veteran being under the doctor's care for one week. The Veteran was again found to have 15/15 bilateral hearing on whispered voice testing at the time of March and November 1953 service department examinations. In a November 1953 note accompanying the examination report, it was indicated that the Veteran had had otitis media in 1951 and that he had subsequently had occasional pruritus of the endural canals thereafter. In a September 1957 letter, the Veteran's private physician, D. Currey, M.D., indicated that in June 1951, the Veteran was admitted to the Currey Clinic. The Veteran related a history of having been on board a ship at sea; while firing heavy artillery shells, his ears began to hurt him and they became very inflamed. He returned to Chattanooga, with his ears discharging profusely, with much pain, and the external canals almost swollen together. Dr. Currey related that the Veteran reported to the clinic and was admitted for the next five days. At that time, it was presumed that he had a pressure-type concussion or pressure-type injury to the external canals. The canals were red and swollen and there was a serosanguineous exudate in both ears. Treatment given at that time was antibiotics, chemotherapy, and irrigations with equal parts of water and alcohol. He was dismissed on June 29, 1951. Dr. Currey stated that since that time, the Veteran was noted to have had continuous trouble with his ears, using alcohol and water irrigations and various salves and ointments, which sometimes gave him relief. He was noted to have had a lot of trouble in recent days. Physical examination revealed that both membranes were pink. He had moderate irritation of the external canal. There was no swelling. This condition was found to be present after three days of continuous treatment. The symptoms were tympanitis, with slight vertigo or dizziness. The Veteran was noted to have itching and swelling of the external auditory canals. On January 1958 VA examination, the Veteran reported that he had experienced defective hearing in both ears since June 1951. He reported that he sustained an injury to his ears following the firing of big guns on the ship he was stationed on in 1951. He indicated that the diagnosis at that time was otitis media. He reported having had discharge from his ears since that time. Physical examination revealed normal canals with both drum membranes slightly off sheen-brittle appearing. There were no definite scars from previous perforation. The Veteran had not had any middle ear drainage for some time. The drainage the Veteran complained of was a mixture of water and wax and he had a slight amount of cerum in each ear. Weber was not referred and there was no appreciable reduction in bone conduction in either ear with the 512 fork and none by air. C. V. hearing was 20/20 plus in each ear. The only evidence the examiner could see of any previous ear infection was the drum membrane and on that basis, he made the diagnosis of chronic otitis media with no hearing impairment. An audiogram performed at that time revealed decibel level readings of 10, 0, and 0, in the right ear and 15, 0, and 0, in the left ear at 500, 1000, and 2000 Hertz, respectively. In support of his claim, the Veteran submitted a report and testing results from a private audiological evaluation performed in January 2007. At the time of the examination, the Veteran was noted to have purchased hearing aids in 1993. He stated that he wanted to know if there was better technology. The audiologist noted that test results suggested precipitous high frequency sensorineural hearing loss in both ears, with the left ear more affected. In a March 2007 statement, fellow serviceman R. G. indicated that during the summer of 1950, the Veteran was treated at Currey Clinic. He stated that when he saw the Veteran, he had blood and pus on his bed that had run down from his cheeks and ears. He indicated that he did not understand why Personnel had sent him home after he returned from his Reserve duty. In an August 2007 letter, V. P. indicated that he had been aboard ship with the Veteran in the summer of 1951. He noted that while on board ship, the Veteran suffered damage to one or both ears following the firing of the deck guns. He stated that the Veteran was taken ashore but received no treatment as he was a Reservist. He indicated that it was his understanding that the Veteran had been close to the guns and that the percussion from the firing had caused the bleeding. The results of private audiometric testing in January 2006 and January 2007, and VA examination testing in June 2011, reveal hearing loss of sufficient severity to constitute a hearing loss disability for VA benefits purposes. In December 2010, the Board obtained a VHA opinion. The audiologist reviewed the claims file and concluded that it was less likely than not that the Veteran's bilateral hearing loss was related to his service. The audiologist explained that there was no indication of hearing loss in service and that hearing loss due to noise exposure did not have a delayed onset. At the same time, the audiologist acknowledged that the whisper voice test was invalid because it did not pick up on high frequency hearing loss. In November 2012, the Board obtained an independent medical opinion in order for a specialist to consider the effects of the in-service treatment for otitis media and reports of noise exposure on the Veteran's current hearing loss. An otologist reviewed the claims file and concluded that it was at least as likely as not that the Veteran's current hearing loss was caused by his service. In so finding, the otologist explained that the Veteran's military noise exposure was at a very high level and it appeared that his otalgia and otorrhea complaints in June 1951 were consistent with tympanic membrane perforation due to high pressure acoustic trauma. The otologist negated the December 2010 opinion by stating that delayed onset hearing loss was in fact possible and was frequently observed clinically. When reviewing the Veteran's 2006 audiogram, showing hearing loss worse at the high frequencies, the otologist found it reasonable to conclude that the Veteran did suffer from high frequency, noise-induced hearing loss in service but did not notice that hearing loss until he began to suffer from age-related hearing loss as well. Such was the case because, as the 2010 audiologist also pointed out, the in-service whisper voice testing was unreliable and would have masked high frequency, noise-induced hearing loss. Because the Veteran was exposed to high level noise exposure in service that was not common outside of military service, and in light of his in-service treatment for otitis media and surrounding symptoms that comported with membrane perforation, it was most likely that his current high frequency hearing loss was related to in-service acoustic trauma. In this case, the Board places greater probative weight on the November 2012 opinion finding that it is at least as likely as not that the Veteran's hearing loss was caused by his service, than on the December 2010 opinion. For one reason, the December 2010 opinion relied heavily on the results of whisper voice testing completed on service separation indicating normal hearing, while at the same time acknowledging that whisper voice testing was invalid for high frequency hearing loss. Moreover, although the December 2010 audiologist stated that delayed onset hearing loss did not occur with exposure to acoustic trauma, the November 2012 otologist found such a statement to be untrue, stating instead that delayed onset hearing loss following noise exposure was frequently observed clinically. The otologist provided further rationale, concluding that given the specific facts of the Veteran's case, to include high level noise exposure and in-service treatment for symptoms consistent with tympanic membrane perforation, it was likely that the Veteran did experience that sort of delayed onset hearing loss. The Board places greater weight on the 2012 opinion because such was provided by a medical doctor rather than an audiologist and also because the 2012 opinion provided a detailed rationale explaining that high frequency hearing loss, specifically shown in the Veteran's case, was often masked until later in life. Furthermore, the 2012 medical opinion comports closely with the medical and lay evidence of record which demonstrates a bilateral ear injury in service reported to have occurred immediately following gunfire without hearing protection, continuing ear pain following service as demonstrated by the 1958 VA examination and rating decision, and current high frequency hearing loss. Thus, the Board finds that the competent, credible, and probative evidence of record supports the Veteran's claim that his current hearing loss was caused by his service. In that regard, there is no indication that the Veteran's testimony lacks credibility; rather, his statements of hearing loss following the naval exercise have remained consistent for many years. Therefore, resolving all reasonable doubt in favor of the Veteran as is required by law, the Board concludes that it is at least as likely as not that the Veteran incurred bilateral hearing loss as a result of his active duty. In this case, service incurrence has been shown by satisfactory lay evidence, consistent with the injuries sustained while on active service, and continuity of the disability since his discharge from service, as well as a positive medical opinion. Therefore, service connection for hearing loss is warranted. 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. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs