Citation Nr: 1307795 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-39 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 M. Hudson, Associate Counsel INTRODUCTION The Veteran performed active military service from September 1967 to June 1970. This appeal arises to the Board of Veterans' Appeals (Board) from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that in pertinent part denied service connection for a bilateral hearing loss disability. This case has previously come before the Board. In December 2012, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert. In January 2013, the VHA opinion was incorporated into the record and the Veteran was provided with a copy of the VHA opinion. The Veteran's September 2010 substantive appeal included a request for a hearing before the Board by live videoconference. The Veteran later withdrew his hearing request in November 2010 in accordance with 38 C.F.R. § 20.704(e) (2012). Therefore, the Board will proceed with a decision on the claim for entitlement to service connection for a bilateral hearing loss without a hearing. FINDING OF FACT 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 (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 difficulty 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). The Veteran claims his bilateral hearing loss is attributable to noise exposure in the military where he served as a flash ranger in Vietnam for 26 months. In this position, the Veteran was exposed to acoustic trauma on a near-continuous basis while directing heavy artillery fire (e.g. howitzers). The Veteran has minimal post-service noise exposure. 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. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's August 1967 entrance examination found his ears were normal and that his hearing was normal for VA purposes. The Board notes that the Veteran's August 1967 audiogram is listed in ASA units; however, conversion to ISO-ANSI units still shows the Veteran's hearing to be normal upon entrance. The Veteran did not self-report any hearing issues. Three years later, at the time of separation he received a 15/15 on a whispered hearing test. No audiogram was completed. 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). In March 2010, the Veteran was provided a VA examination. The Veteran stated that he first noticed hearing loss two to three years previously and was found to have current hearing loss for VA purposes. The examiner provided a negative nexus that was based, in part, on the fact that the there were no documented complaints of hearing loss in the Veteran's service treatment records and that his hearing was normal upon discharge, with a 15/15 on a whispered voice test. "[W]hispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02) (March 18, 2010). In that letter, the Director of the VA C&P Service stated that "whispered voice tests... cannot be considered as reliable evidence that hearing loss did or did not occur." Id.; see Nieves-Rodriguez, 22 Vet. App. at 301; Reonal, 5 Vet. App. at 460-61. The VA examiner's opinion also did not consider that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 160. Additionally, the examiner based his opinion on the fact that the Veteran only noticed hearing loss in the past few years and current research does not support the concept of delayed onset of hearing loss. As discussed below, current research does support the concept of delayed onset of hearing loss. Additionally, the examiner found the Veteran's hearing loss was due to post-service factors, but did not enumerate these intercurrent causes. Therefore, the VA examination has limited probative value. In January 2013, the Board secured a VHA opinion from a doctor of neurotology and otolaryngology. The doctor reviewed the Veteran's c-file, including his service treatment records and the March 2010 VA examination. He found the Veteran was exposed to extremely high and sustained levels of explosive noise while serving in Vietnam, he did not have effective ear protection while in Vietnam and has a current hearing loss disability. The examiner noted that the rudimentary whisper test on discharge is essentially useless for detecting high frequency hearing loss, which is where the majority of hearing loss from noise exposure takes place. Additionally, the examiner stated that it is commonly accepted that hearing loss is denied until a person is confronted by family and friends and the level of hearing loss has become intolerable. Thus, even though the Veteran first noticed hearing loss in 2008, it is very possible that he had significant hearing loss since service which continued to deteriorate over the years. The examiner also stated that there is both clinical as well as basic science data suggesting a high probability of "delayed" noise induced hearing loss. The examiner opined that the Veteran's hearing loss is compatible with noise exposure and most likely the result of noise exposure during combat. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability; that he was exposed to acoustic trauma in service with no hearing protection; that the whispered voice hearing test provided to the Veteran upon discharge is not reliable to show that hearing loss did or did not occur; that he first noticed hearing loss in approximately 2008; that there is scientific and clinical data that supports the concept of delayed noise induced hearing loss; and that there is a positive VHA opinion in the record linking the Veteran's current hearing loss disability to his in-service noise exposure. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs