Citation Nr: 1311924 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-02 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The Veteran had active duty for training from March 1975 to September 1975 and active military service from July 1979 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Denver, Colorado. In April 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge; a transcript of that hearing is of record. In December 2012, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In a March 2013 memorandum, the Veteran's accredited representative waived RO consideration of the 2011 VA clinical opinions and the 2013 private clinical opinion. This matter was previously before the Board in June 2010, when the Board denied the Veteran's claim. The Veteran appealed the June 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2011, the Court vacated the Board's June 2010 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The matter was again before the Board in August 2012 when it was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of its remand. The issue of entitlement to service connection for Meniere's Disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. (See May 2012 correspondence from Veteran.) FINDINGS OF FACT 1. While in service, the Veteran served in the motor pool as a unit supply specialist with a field artillery unit and was exposed to acoustic trauma. 2. The Veteran has a current bilateral hearing loss disability which a private examiner has opined is due to in-service noise exposure. 3. The competent and probative evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss is due, in part, to service-related acoustic trauma. CONCLUSION OF LAW Bilateral hearing loss disability was incurred during active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in April 2006. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records and correspondence, and the statements of the Veteran in support of his claim, to include his testimony at two Board hearings. VA opinions were obtained in February 2007 and August 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the decision below, the Board grants entitlement to service connection for bilateral hearing loss disability; thus, any defect with regard to the clinical opinions is not prejudicial to the Veteran. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that he has a bilateral hearing loss disability as a result of active service. An essential element of a claim for service connection is evidence of a current disability. A February 2007 VA examination report is of record. The report revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 75 95 LEFT 30 35 60 85 95 His speech recognition score was 61 percent for the right ear and 69 percent for the left ear. Based on the foregoing, the Veteran does have a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's DD 214 reflects that primary specialty was as a unit supply specialist. It also notes that his last duty assignment was with a field artillery unit. A DD Form 2215 and a DD Form 2216 both reflect that the Veteran worked in a motor pool. The Veteran testified that during service he was a supply sergeant and was attached for a period of time to a field artillery unit. He contends that he was exposed to noise trauma during field exercises, while firing weapons, and while on a helicopter on one occasion. (See April 2010 Board hearing transcript pages 4 and 5.) He also testified that he had "no hearing protection at all while we were out there." (See December 2012 Board hearing transcript page 3.) The Board finds that the Veteran is less than credible with regard to his statement that he did not have hearing protection in service. A DD Form 2215, dated in June 1982, reflects that the Veteran had been previously issued earplugs which were hand formed earplugs in a size medium for the right ear, and size large for the left ear. In addition, the Veteran previously testified at the April 2010 Board hearing that he had "little plastic things we stuck in our ears". The February 2007 VA examination report also reflects that the Veteran wore earplugs around loud noise. Nevertheless, the Board finds that some acoustic trauma is consistent with the Veteran's service of receiving training on firing weapons, and working in a motor pool. 38 U.S.C.A. § 1154(a) (West 2002). A third requirement for service connection is medical evidence of a nexus between the current disability and the in-service disease or injury. The Veteran's STRs include a November 1974 report of medical examination for appointment in the U.S. Army National Guard. The audiologic evaluation revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 0 15 LEFT 25 5 10 10 15 In Hensley v. Brown, 5 Vet.App. 155, 157 (1993) the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Therefore, the Veteran's examination prior to entrance reflects normal hearing in the right ear and abnormal hearing in the left ear. However, the left ear abnormal hearing acuity was not a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. The Veteran's STRs include a July 1975 medical report for separation purposes. The audiologic evaluation revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 -- 15 LEFT 15 15 15 -- 15 As noted above, the Veteran entered active service in July 1979. An October 1980 STR reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 0 10 15 LEFT 20 10 0 10 15 A September 1981 audiogram is also in evidence. It reveals that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 5 15 LEFT 5 5 10 15 25 A DD Form 2215, dated in June 1982, reflects that an audiologic evaluation was performed to establish a reference following exposure in noise duties. The evaluation revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 15 LEFT 15 10 10 15 10 A DD Form 2216, dated in May 1983, reflects that an audiologic evaluation was performed for annual purposes. The evaluation revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 5 20 LEFT 10 10 15 10 10 A March 1987 report of medical history for National Guard enlistment purposes reflects that the Veteran denied any hearing loss. The March 1987 report of medical examination reflects that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 10 5 LEFT 10 0 5 5 0 A private hearing evaluation report reflects that the Veteran was evaluated in March 2010. A "report comment", dated December 2012, reflects "noise exposure during military service is probable cause of hearing loss." Correspondence dated in January 2013 from Dr. R.F. reflects his opinion that " . . given [the Veteran's] military experience this in part plays a role in the loss that he has." A private medical record dated in January 2013 from Dr. R.F. also states "hearing loss most likely due to noise exposure." The claims file includes a February 2007 VA examination report. The examiner opined that the Veteran's hearing loss was not caused by, or a result of, noise exposure during military service. The opinion was based on a review of the claims file, to include the March 1987 record which reflects that four years after active duty military service, the Veteran had documented normal hearing in both ears. The claims file also includes an August 2011 VA medical opinion from A.E. The clinician reported that no hearing loss was detected at the 4000 Hertz level during the Veteran's time in service. The clinician also noted that during the Veteran's time in service, he apparently suffered a temporary shift at the 6,000 Hertz level; however, the loss was temporary as evidenced by the March 1987 audiologic examination results. The clinician further stated that "noise exposure can cause temporary shifts in hearing and then once the [patient] is away from the noise, the [patient's] hearing returns back to normal. This is most likely what happened with this [patient]." The clinician opined that the Veteran's current hearing loss is not due to military noise exposure. The claims file also includes an opinion from Dr. M.D. He opined that the fluctuations in hearing which were documented during the Veteran's military service do not necessarily represent hearing damage or a precursor of future hearing loss. He noted that the audiology results in 1987 document better hearing than the Veteran's 1974 enlistment. He also noted that the Veteran's fluctuations do not demonstrate a consistent progression and the variability could be due to a number of factors. He opined that the Veteran's current hearing loss was not caused by or the result of in-service noise exposure. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The VA opinions, while providing extensive rationale and noting fluctuations, fail to acknowledge that the Veteran had abnormal hearing in the right ear at the 500 Hertz level in October 1980, and abnormal hearing in the left ear at the 4,000 Hertz level in September 1981. As noted above, the Court has held that thresholds higher than 20 decibels indicate some degree of hearing loss In Hensley v. Brown, 5 Vet.App. 155, 157 (1993). In sum, the Veteran had exposure to acoustic trauma in service, had abnormal hearing in service, and has a current hearing loss disability for VA purposes. A private clinician has opined that the Veteran's noise exposure during military service is the probable cause of his hearing loss. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral hearing loss disability was incurred in service. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs