Citation Nr: 1306393	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  12-10 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran served on active duty from January 26, 1955 to January 8, 1958.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  

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 from his military service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein.  See 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012).  This is so because the Board is taking action favorable to the Veteran by granting the issue at hand.  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. 49,747 (1992).  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  Service connection for certain diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Impaired hearing is considered a disability for VA purposes 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 Veteran is seeking entitlement to service connection for bilateral hearing loss.  He contends that he was exposed to loud explosions, engines and ground support equipment while serving as a quarry and surface mechanic in the Army.  

Historically, the Veteran served on active duty in the Army from January 1955 to January 1958.  His Form DD 214 noted that he served as a quarry and surface mechanic.  Thus, the record clearly establishes that the Veteran was exposed to noise during service.  

His January 1955 pre-induction examination noted hearing acuity of 15/15, bilaterally, on whispered voice testing.  His service treatment records are silent as to any complaints or diagnoses of hearing loss.  His January 1958 separation examination noted hearing acuity of 15/15, bilaterally, on whispered voice testing.  

Private medical records show that in August 2010, the Veteran underwent an audiological evaluation.  He presented a history of hearing loss since serving in the Army.  He noted exposure to loud noises form blasting and rock crushing while serving as a quarry operator.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
75
80
95
LEFT
30
30
70
70
80







Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear.  The examiner diagnosed binaural hearing loss.  The examiner stated that after reviewing the Veteran's service history, it was "as least as likely as not" that the Veteran's hearing loss was the result of his exposure to hazardous noise while in the service.  

As a February 2011 VA audiological report shows that the Veteran reported having a hearing loss for 44 years.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
75
85
95
LEFT
45
45
75
80
95







Speech audiometry revealed speech recognition ability of 28 percent in the right ear and of 68 percent in the left ear.  The examiner stated that a diagnosis was not possible because to make a diagnosis would be resorting to speculation.  However, the examiner went on to state that in the Veteran had severe, bilateral sensorineural hearing loss.  The examiner stated that he was unable to determine if the noise exposure in service caused any hearing loss due to the Veteran's performance on the hearing test.  

In March 2012, a VA audiological examination was conducted.  The VA examiner noted bilateral sensorineural hearing loss.  The Veteran reported noise exposure in service due to rock crushers, blasting, heavy equipment, and artillery fire during basic training.  The examiner noted that after service, the Veteran worked in sales and denied a history of occupational or recreational loud noise exposure.  On audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
70
85
95
LEFT
20
25
70
65
75

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 percent in the left ear.  The examiner found that the current hearing loss was not caused by or the result of an event in military service.  The rationale provided was that the enlistment and separation examinations were consistent with normal hearing and there were no complaints of or treatment for the condition for 50 years thereafter.  

The Veteran reports continuing symptoms of decreased hearing from the noise exposure during service to the present.  His statements as to what he experienced in service and the resulting symptoms are competent evidence.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  Additionally, the Board finds the Veteran's statements have been internally consistent and consistent with the other evidence of record, and therefore are credible.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record).  

The Board finds that the February 2011 examination is inadequate and has little probative value as the examiner's conclusion was that he was unable to provide an etiology opinion and a diagnosis would be speculative.  Moreover, the March 2012 VA opinion was based on conclusion that the entrance and separation examinations were normal.  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."  Regardless, service connection may be granted for hearing loss found after service discharge, when all the evidence, including that pertinent to service, establishes that it is related to service.  38 C.F.R. § 3.303(d).  The law does not require evidence of an inservice hearing disability that meets the standard outlined for a hearing impairment disability for VA purposes.  38 C.F.R. § 3.385.  There need only be a basis for attributing the current disorder to an injury in service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Additionally, VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  When the Veteran does not meet the regulatory requirements for a disability at separation, service connection can still be established if medical evidence shows that it is actually due to incidents during service.  38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155 (1993).  As the VA examiner failed to consider all of the evidence of record, to include the inaccuracy of whispered voice test, as well as the Veteran's statements of experiencing a decrease in hearing while in service and continuously thereafter, the Board finds the VA opinion is of limited probative value.  

The evidence of record shows that the Veteran has a current hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  The evidence also shows competent and credible evidence of noise exposure in service.  Additionally, the private physician in August 2010 found that based on the history of the Veteran's service, examination of the Veteran, and the Veteran's account of the noise exposure in service, that his current hearing loss was due to his military service.  Accordingly, there is probative medical evidence of record that links the Veteran's current bilateral hearing loss disability to the Veteran's noise exposure in service.  Accordingly, service connection for bilateral hearing loss is warranted. 

ORDER

Service connection for bilateral hearing loss is granted.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs