Citation Nr: 1308022	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  10-43 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability. 


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1967 to July 1969.

This case comes before the Board of Veterans Appeals (the Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in part, denied the Veteran's claim of entitlement to service connection for hearing loss.  

The Veteran testified before the undersigned Veterans Law Judge at the RO in August 2011.  A transcript of the hearing is within the claims file.  


FINDING OF FACT

The evidence for, and the evidence against, the Veteran's claim for service connection for a hearing loss disability is in relative equipoise.  


CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted.  See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's claim of entitlement to service connection for bilateral hearing loss is granted, as explained below.  As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

A.  Legal Criteria

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining 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 claims, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran 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'-the so-called 'nexus' requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Certain diseases, to include organic diseases of the nervous system, such as hearing loss disability, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

With respect to hearing loss disability, VA has specifically defined what is meant by a 'disability' for the purposes of service connection.  See 38 C.F.R. § 3.385 (2012). '[I]mpaired 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.'

The Board notes that the Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.

B.  Factual Background

The Veteran contends that he currently experiences hearing loss as a result of his active duty service.  Specifically, the Veteran contends that he was exposed to noise from being basic training, close range weapons, artillery mortars, guns, howitzers, jet aircraft, and generators.  The Veteran's DD 214 shows that his military occupational specialty [MOS] was a light weapons infantry.  This MOS is consistent with hazardous noise exposure. 

Service treatment records, including examinations dated in August 1967 and July 1969, are negative for findings of hearing loss for VA compensation purposes, but do reflect a worsening of the Veteran's hearing acuity.  Puretone thresholds were as follows:


HERTZ
Date
Ear
500
1000
2000
3000
4000
August 1967
RIGHT
0
0
0
0
0

LEFT
0
0
5
5
0
July 1969
RIGHT
15
0
0
-
20

LEFT
5
5
20
-
15

In associated medical history reports dated in August 1967 and July 1969, the Veteran specifically denied hearing loss. 

Post-service, the Veteran underwent VA examinations in April and September 2010.  During each examination, the Veteran complained of noise exposure during service and denied vocational noise exposure.  The Veteran admitted to some recreational noise exposure on all terrain vehicles (ATVs).  

Postservice puretone threshold testing yielded the following: 


HERTZ
Date
Ear
500
1000
2000
3000
4000
April 2010
RIGHT
10
10
25
55
50

LEFT
10
15
45
55
60
September 2012
RIGHT
10
10
25
55
50

LEFT
10
15
45
55
60

In her April 2010 opinion, the examiner opined that the Veteran's hearing loss is less likely as not related to noise exposure as the Veteran had normal hearing at separation.  In her September 2010 opinion, the examiner determined that the she could not determine whether the Veteran's in-service change in thresholds and his current hearing loss were related without resorting to mere speculation. 

During an August 2011 Travel Board hearing, the Veteran testified that he was around jet airplanes as he was stationed at the end of an Air Force runway.  He also reported noise exposure from guns.  He reported that after service he worked in an office job with recreational noise exposure from mowing his lawn and ATVs.  

C.  Analysis

The Board notes that the RO conceded in-service noise exposure based on the Veteran's assignment in light weapons infantry.  Additionally, the Board notes that the Veteran has already been service connected for tinnitus as related to noise exposure.  

As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated hearing loss disability of either ear to a compensable degree within one year of discharge from active duty.  As such, service connection for hearing loss disability cannot be granted on a presumptive basis.

With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. 3.303(d) (2012).

In view of the totality of the evidence, including the Veteran's in-service threshold shift, his established service-connection for tinnitus, and the findings of the April and September 2010 VA audiological assessment showing bilateral hearing loss for VA compensation purposes, the Board finds that the Veteran's bilateral hearing loss as likely as not developed as a result of his active service.  The Veteran's report of exposure to hazardous noise is consistent with his duties during active service.  The Board finds his statements as to noise exposure during and after service to be credible.

The Board notes that the April 2010 VA examiner's opinion found that the Veteran's hearing loss was not due to service.  However, the Board does not find this opinion persuasive.  The examiner stated that the Veteran's hearing was normal at separation so the Veteran's hearing loss was not incurred in active service; however, the examiner was unable to state the reason for the threshold shift noted during service.  

Moreover, the Veteran's tinnitus has been linked to service.  The fact that the Veteran has been diagnosed as having tinnitus as a result of his in-service noise exposure and granted compensation for tinnitus adds to the credibility of the Veteran's contention that his hearing loss disability is related to service because "an associated hearing loss is usually present" with tinnitus.  The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Further, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id.  With regard to the latter, the evidence of record reflects that the Veteran's tinnitus is noise-induced, i.e., a result of his exposure to acoustic trauma during service. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss."  The Merck Manual, Section 7, Ch. 85, Inner Ear. 

In light of the evidence that the Veteran was exposed to acoustic trauma in service, that his in-service audiograms show a noticeable threshold shift signifying worsening hearing acuity from enlistment to separation, that the Veteran, and that all other negative medical opinions of record are unsupported by adequate clinical rationale, the Board concludes that, at the very least, the evidence for and the evidence against the claim are in relative equipoise.  When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). Therefore, the benefit-of-the-doubt will be conferred in his favor and his claim for service connection is granted, subject to the controlling laws and regulations, which govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs