Citation Nr: 1306644	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  09-42 993	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to September 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO).

In December 2012, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal along with a waiver of RO jurisdiction of such evidence.  Thus, the Board accepts this evidence for inclusion in the record on appeal.  38 C.F.R. § 20.1304 (2012). 


FINDING OF FACT

The Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active duty service.  38 U.S.C.A. §§ 1110, 5103A, 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (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). 

In multiple written statements of record as well as during his December 2012 Board hearing, the Veteran contended that his currently diagnosed bilateral hearing loss was the result of exposure to noise from rifles during his active duty service.  The Veteran asserted that he first noticed decreased hearing during service in 1969, was not issued any hearing protection during service, and was made aware of his hearing loss at separation.  He indicated that he decided to pursue his options stateside inside of delaying his separation.  He reported that his hearing loss became very evident upon his return to college shortly after discharge.  The Veteran denied any significant post-service noise exposure while employed for 25 years in a naval shipyard and reported daily use of hearing protection when in hazardous noise areas.  The Veteran specified that his career with the Navy included mostly supervisory and management positions, that the Navy had a good hearing conservation program, and that his use of hearing protection was mandatory.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, 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) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012).  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. 

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.

However, that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  
Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was "Lt Wpns Inf" (Light Weapons Infantry).  

Service treatment records associated with the claims file are negative for a diagnosis of or treatment for a bilateral hearing loss disability as defined by VA.  In a February 1969 Report of Medical History, the Veteran marked no when questioned as to whether he ever had or now had hearing loss.  In a February 1969 service induction examination report, pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
N/A
0
LEFT
10
0
0
N/A
15

In an August 1970 service separation examination report, pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
20
10
0
N/A
0
LEFT
20
10
5
N/A
25

In a September 1970 Statement of Medical Condition, the Veteran indicated that there had been no change in his medical condition since his last separation examination.

A January 2008 private audiological evaluation from Hearing Carolina showed findings of right ear mild to moderate sensorineural hearing loss, and left ear mild to severe sensorineural hearing loss.  A September 2010 audiological evaluation from that provider showed findings of precipitous sensorineural hearing loss in both ears, but slightly worse in the left ear.  These reports included a graphical representation of the audiometric evaluation without interpretations of the graph.  Based on the disposition of this appeal, the Board is not obligated to seek additional clarification of any of the private audiograms associated with the record.  

In a March 2008 VA audiology examination report, the Veteran reported a history of in-service noise exposure, including rifle training, infantry training, and weapons qualifications.  He denied a history of significant post-service occupational or recreational noise exposure.  He reported that he worked for a naval shipyard for 25 years and wore hearing protection when in hazardous noise areas.  

Pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
0
5
30
40
55
LEFT
5
10
50
65
75

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 86 percent in the left ear.  After examining the Veteran, the examiner diagnosed normal to moderately severe sensorineural hearing loss for both ears.  As the Veteran's claims file was unavailable, the examiner indicated that the requested opinion could not be provided.  He cited to a passage from the 2004 Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, noting that an audiologist must not offer a medical opinion without a thorough review of the medical and military records. 

A copy of a July 2008 internal RO email showed that the RO sought an examination clarification, specifically an opinion as to whether diagnosed hearing loss was due to military noise exposure.  The RO informed the examiner that recent guidelines did not require the claims folder be sent to the examiner when requesting opinions in regard to hearing loss being due to military noise exposure if a complete history is provided in the examination request.  The RO indicated that it appeared a complete history had been provided in the request and supplied a copy of the history in the email for the examiner's review.   

The copy of the July 2008 RO email associated with the claims file contained a July 2008 medical opinion from the same VA examiner that conducted the March 2008 VA examination.  The examiner highlighted that recent guidelines had not been made available to examining audiologists and that the guidelines contradicted the handbook cited above.  He warned that it was not advisable and considered much less desirable not to have the claims folder when requesting a medical opinion but addressed the opinion requested without the Veteran's claims folder.  The examiner's review of the Veteran's entry audiogram in February 1969 and discharge audiogram dated in August 1970 showed hearing levels within normal limits for frequencies from 500 to 4000 Hertz.  In the examiner's opinion, therefore, the bilateral hearing loss was "less likely than not" related to the Veteran's noise exposure during military service.  He noted that without the claims folder, it was impossible to make any opinion as to the quality of the audiograms that were provided on the request for physical examination.

An August 2009 private audiological evaluation from Shelby Hearing and Balance Center included a graphical representation of the audiometric evaluation without interpretations of the graph.  In an attached October 2009 statement, a private audiologist indicated that audiometric testing revealed a mild to moderately severe sensorineural hearing loss in the right ear and a mild to moderate to severe sensorineural hearing loss in the left ear.  The audiologist noted a review of testing done upon military induction and separation.  Based on that review, the audiologist opined that the difference between the induction and separation examinations revealed a change in hearing sensitivity at 4000 Hertz.  Thus, it was "as likely as not" that there was an initial change in the high frequencies as a result of noise exposure during service.  

In an October 2009 statement, the Veteran cited to an Institute of Medicine study that indicated that young adults with a slight noise-induced high-frequency hearing loss, one not likely to cause much difficulty with communication if present at the time a young adult might be discharged from military service, will likely exhibit greater hearing loss as they age than young adults with normal hearing at discharge. 

In the June 2010 VA audiology examination report, the examiner noted that the Veteran had served as a light infantryman and in the motor pool while in service.  It was noted that the Veteran reported working as a supervisor in a naval shipyard, with a sound-treated office and use of hearing protection.  The Veteran denied any recreational noise exposure.  

The pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
350
50
60
LEFT
10
10
55
75
80

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear.  After reviewing the claims file and examining the Veteran, the examiner diagnosed normal to moderately severe sensorineural hearing loss in the right ear and normal to severe sensorineural hearing loss in the left ear.  The VA examiner acknowledged the difference in the 4000 Hertz frequency in one ear between the induction and separation examination reports but concluded that the difference was within the range for test-retest reliability.  The examiner also highlighted an apparent difference at 500 Hertz for both ears on the exit audiogram, finding that those thresholds were worse than in the recent audiogram and concluding that they were erroneous or of no true clinical difference.  As no significant difference was shown in the service data and though hearing protection was reportedly always used during the Veteran's civilian noise history, the examiner opined that there was not sufficient evidence in the medical record to "presume" a direct connection between the hearing loss currently manifested and the Veteran's military noise exposure.  

Lay statements from the Veteran's spouse and longtime friend were associated with the record in December 2012.  The Veteran's friend indicated that it was apparent that the Veteran's hearing was impaired after he was discharged from service in 1970.  He noted that he worked at the same shipyard with the Veteran, who was a pipefitter and later served most of his years in management.  He reiterated that the shipyard had a very good hearing program.  The Veteran's spouse detailed that he had suffered from hearing loss since she met him in 1974.

Private physician reports dated in October 2009, November 2009, and August 2010 showed findings of bilateral high frequency sensorineural hearing loss with asymmetry, worse in the left ear with abnormal auditory brainstem response, but a normal magnetic resonance imaging of the brain and inner ear canals.

A February 2011 VA audiology consult was conducted to assess gradual hearing loss.  The Veteran reported longstanding history of asymmetric sensorineural hearing loss, exposure to small arms fire and grenades during service, and occupational or recreational exposure to farm equipment.  The pure tone thresholds, in decibels, were reported as follows:

HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
45
55
65
LEFT
15
25
65
75
80

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 88 percent in the left ear.  The examiner listed an impression of asymmetric sensorineural hearing loss, worse in the left ear and consistent with patient report. 

After a thorough review of the evidence of record, the Board concludes that service connection for bilateral hearing loss is warranted.  In this case, post-service VA audiology examination results dated in March 2008 and June 2010 reflect a bilateral hearing disability for VA benefit purposes.  38 C.F.R. § 3.385.  

The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignments.  38 U.S.C.A. § 1154(a) (West 2012).  Service personnel records, including his DD Form 214, demonstrated that the Veteran served as a Light Weapons Infantryman.  The Veteran's reported duties comport with the nature of his MOS and his duty station.  There is no evidence of record demonstrating that the Veteran was not exposed to noise from rifles during active service as asserted.  As such, the Board finds the Veteran's report of inservice noise exposure competent and credible evidence.  

During the pendency of the appeal, the Veteran asserted that he experienced decreased hearing acuity in his ears during his active duty service as the result of exposure to noise associated with working and training with rifles as well as grenades and other small arms.  The Veteran further asserted that these symptoms persisted from the time of the in-service acoustic trauma until the present.  Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(holding that lay statements are competent evidence of a diagnosis if they describe symptoms that support a later diagnosis by a medical professional).  Additionally, the Veteran's statements are internally consistent, as he has repeatedly asserted that he had decreased hearing acuity that began during service in 1969 or shortly after discharge in 1970 and continued to the present.  There was also no evidence of record demonstrating acoustic trauma or any occupational or recreational noise exposure without use of hearing protection following the Veteran's active duty discharge.  Based on the above, the Board finds the Veteran's assertions of experiencing decreased hearing acuity since active duty service as credible evidence.

The Board finds the March 2008 VA examination and addendum inadequate.  After conducting the March 2008 VA examination, the same VA examiner based his July 2008 VA addendum medical opinion simply on the Veteran's enlistment and separation examination report findings, which showed hearing sensitivity within normal limits for all frequencies tested for both ears.  Hensley, 5 Vet. App. at 159 (holding that if a hearing loss disability for VA purposes is not shown in service or at separation from service, service connection can be established if the medical evidence shows that it is actually due to incidents during service). 

The June 2010 VA examination is also inadequate as the examiner simply indicated that a significant difference was not shown in the service induction and separation examination report audiological findings.  He also acknowledged that hearing protection was reportedly always used during the Veteran's civilian noise history before opining that there was not sufficient evidence in the medical record to "presume" a direct connection between the hearing loss currently manifested and the Veteran's military noise exposure.  The foregoing statements do not constitute a complete rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight).

In addition, the July 2008 VA medical opinion did not adequately consider the Veteran's reports of in-service noise exposure and neither of the July 2008 or June 2010 VA opinions considered the Veteran's statements as to symptoms at the time of his separation from service.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses).  Furthermore, the VA examiners failed to consider the Veteran's reports of experiencing continuous symptoms following his separation from service, as well as to provide opinions concerning the actual etiology of the Veteran's current bilateral hearing loss.  

For all the foregoing reasons, the Board finds that the March 2008 VA examination report with July 2008 addendum medical opinion, and June 2010 VA examination report are inadequate for adjudication purposes and are of little probative value.

In view of the totality of the evidence, including the Veteran's documented in-service MOS, current findings of bilateral hearing loss, the decreased probative value of the VA examinations, the private medical opinion, the Institute of Medicine study, and the competent and credible reports of in-service hazardous noise exposure and continuous symptoms of decreased hearing acuity, the Board finds that the Veteran's current bilateral hearing loss cannot be reasonably disassociated from his military service.  The Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for bilateral hearing loss is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for bilateral hearing loss is granted.



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

Department of Veterans Affairs