Citation Nr: 1311708	
Decision Date: 04/09/13    Archive Date: 04/19/13

DOCKET NO.  10-38 162	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to January 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

In December 2011, the Veteran testified at a Board hearing by videoconference before the undersigned.  A transcript of the hearing is in the file.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The Veteran's bilateral hearing loss disability was caused by hazardous noise exposure from weapons training without hearing protection during active military service. 


CONCLUSION OF LAW

A bilateral hearing loss disability was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

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.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. Duty to Notify and Assist

The  claim of entitlement to service connection for a bilateral hearing loss disability has been granted, as discussed below.  As such, the Board finds that any error related to the VCAA on this claim is moot.  See 38 U.S.C. §§ 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).  

II. Analysis

The Veteran claims entitlement to service connection for a bilateral hearing loss disability.  For the following reasons, the Board finds that service connection is warranted. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-part test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *4 (Fed. Cir. Feb. 21, 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  

Claims for certain chronic diseases, namely those listed in 38 C.F.R. § 3.309(a), benefit from a somewhat more relaxed evidentiary standard under subsection 3.303(b).  See Walker,___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *15 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.; see also Walker___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *9 (observing that subsection 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease").  

When the claim is for a disorder or disease not listed in section 3.309(a), then "the 'nexus' requirement of the three-element test" must be satisfied, and evidence of a continuity of symptomatology will not suffice to establish service connection.  Id. at *14; see also id. at *9-11, *15-16 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).  The Federal Circuit has clarified that the "medical nexus" requirement of the three-element test is a higher evidentiary showing than the more relaxed continuity-of-symptomatology standard, and that the latter only applies to the specific chronic diseases listed in section 3.309(a) of the regulations.  Id. at 13-14. 

The Veteran's bilateral sensorineural hearing loss is considered an organic disease of the nervous system, which is defined as a chronic disease in section 3.309(a).  Thus, the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service.  See id.

The Veteran's bilateral hearing loss disability is also eligible for presumptive service connection.  Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for organic diseases of the nervous system, including sensorineural hearing loss, may be established on a presumptive basis by showing that the disease 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, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

Under the first Shedden element, there must be evidence of a current hearing loss disability.  Shedden, 381 F.3d at 1166-67.  See Shedden, 381 F.3d at 1166-67.  Impaired hearing will be considered to be a disability under the laws administered by VA 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 the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected.  Hensley at 159.

The competent evidence establishes a current bilateral hearing loss disability.  Specifically, an October 2009 VA audiological examination report reflects audiometric testing showing puretone thresholds, in decibels, as follows:
 



HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
75
75
75
LEFT
55
65
75
70
70

The Veteran's puretone thresholds show a current bilateral hearing loss disability under VA law.  38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 157, 159.  Indeed, the examiner diagnosed moderate to severe sensorineural hearing loss in the right ear, and moderately severe to profound sensorineural hearing loss in the left hear. 

The balance of the evidence supports a relationship between the Veteran's current hearing loss disability and hazardous noise exposure during active service.  According to the Veteran's testimony at the December 2011 Board hearing and in written statements submitted by him, he was exposed to hazardous noise during active service from weapons training without the use of hearing protection.  Such training is well documented in the service personnel records, which show one week of training with a 3.5 rocket launcher and M-60 machine gun in April 1968 at Camp Lejeune, among training with other types of firearms.  The Veteran also related that he participated in monthly weapons training without hearing protection at a rifle range in Vietnam, where he served during the Vietnam War.  His DD 214 shows that he was awarded the Navy Expert Rifle Medal, among other citations.  He has also reported hazardous noise exposure from low flying aircraft and submitted photographs in support of this statement. Thus, the second Shedden element is satisfied with competent and credible evidence of in-service hazardous noise exposure.  Shedden, 381 F.3d at 1166-67.

At the Board hearing, the Veteran stated that his ears would ring for a couple of days after shooting some firearms, and that he noticed subtle hearing loss during active service which progressively became worse after separation.  According to a January 2009 statement and his January 2009 application for service connection, his hearing loss became truly noticeable in the 1970's shortly after separating from active service in January 1970.  He has reported seeking treatment for hearing loss in the 1980's, and testified at the Board hearing that he has worn hearing aids since 1989.  

The Veteran's reported history is both competent and credible, as hearing loss and ringing in the ears can be experienced by lay observation alone, and the Veteran's weapons training is supported by the service personnel records.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation); Cf. Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus, or ringing in the ears, is a disorder with symptoms that can be identified through lay observation alone).  The Veteran is also competent to report that he was treated for hearing loss in the 1980's and fitted with hearing aids in 1989.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau, 492 F.3d at 1376-77.  Although there is no contemporaneous evidence of hearing loss until March 2009, the absence of contemporaneous evidence does not by itself render his statements not credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). 

The service treatment records do not show treatment or complaints of hearing loss, and the examination reports do not reflect the results of puretone threshold testing, including at separation.  The December 1969 separation examination report does show that a whispered voice test was normal, and that the Veteran's hearing was clinically evaluated as normal.  However, in the absence of recorded results from audiometric testing, there is no way to determine whether the Veteran had hearing loss which was not detected by the whispered voice test. 

A March 2009 letter from the Veteran's private ear, nose, and throat doctor states that the Veteran had a "longstanding" bilateral sensorineural hearing loss and that the configuration of the hearing loss and its onset was consistent with acoustic trauma during active service.  The physician further stated that the Veteran's exposure to machine gun fire and other firearms without the benefit of hearing protection, as well as his exposure to jet engine blasts from nearby aircraft, was the likely cause of his hearing loss. 

A June 2009 VA examination report notes that the Veteran had exposure to various weapons during service, and that his loudest noise exposure was from an M60 machinegun.  The examiner diagnosed bilateral sensorineural hearing loss based on audiometric testing and opined that his hearing loss was at least as likely as not due in part to military noise exposure.  

At the October 2009 VA examination, the Veteran reported noise exposure from firearms training during active service, and denied significant occupational or recreational noise exposure as a civilian.  The examiner diagnosed moderate to severe bilateral sensorineural hearing loss.  The examiner stated that a nexus opinion could not be provided without resorting to speculation.  In this regard, the examiner explained that the Veteran's service treatment records do not show the results of puretone threshold testing, including at separation, and reflect that his hearing was clinically evaluated as normal at the time.  Moreover, the service treatment records were negative for complaints or treatment of hearing loss or tinnitus.  The examiner also noted that the Veteran served as a Postal Clerk and that his significant noise exposure was limited to firearms training.  Finally, the examiner noted that the Veteran reported beginning the use of hearing aids in about 1989, but that there was no documented treatment for hearing loss in the file for at least two decades following his separation from service. 

The March 2009 opinion by the private ear, nose, and throat doctor, and the June 2009 opinion by the VA audiologist constitute probative evidence that the Veteran's current bilateral hearing loss disability was likely caused by in-service hazardous noise exposure.  These opinions were rendered by medical professionals specializing in diseases of the ear and were grounded in the Veteran's competent and credible report of hazardous noise exposure from weapons training without hearing protection.  Although the service treatment records do not reflect the results of audiometric testing which would show whether or not hearing loss was present by separation, these favorable nexus opinions did not turn on whether the Veteran's hearing loss manifested in service.  Rather, they were based on the fact that the Veteran first noticed hearing loss soon after service, that his in-service hazardous noise exposure was sufficient to cause such hearing loss, and that he did not have a history of post-service hazardous noise exposure as a civilian. 

The October 2009 VA examiner's stated inability to render a nexus opinion without resorting to speculation does not necessarily weigh against the claim.  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  It certainly does not outweigh the more definitive opinion provided by the March 2009 private physician, which is supported by a complete explanation.  

Accordingly, the Board finds that the evidence is in relative equipoise with regard to whether third Shedden element (the "nexus" element) is satisfied, and resolves any doubt in the Veteran's favor.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 
Consequently, service connection for a bilateral hearing loss disability is granted.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1166-67. 


ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.




____________________________________________
P.M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs