Citation Nr: 1312756	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-42 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The appellant and his spouse


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran appellant served on active duty in the United States Navy from February 1956 to June 1959.  

This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas that, in part, denied the appellant's claim of entitlement to hearing loss.

The appellant provided testimony at a hearing conducted by the undersigned Acting Veterans Law Judge at the RO in August 2010.  A transcript of this Travel Board hearing has been associated with the Veteran's claims file.  

The Board remanded the case for additional development in October 2010.  The case has now been returned to the Board for appellate review.  After the case was returned to the Board, the appellant's representative submitted additional evidence consisting of various lay statements from third parties who were aware of the appellant's hearing problems over the years.

The appellant's representative also submitted a written waiver of initial review of that evidence by the agency of original jurisdiction.  See 38 C.F.R. § 20.1304 (2012).  Furthermore, given that the claim is being granted herein, the Board finds no prejudice to the Veteran in proceeding with appellate review.

In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim.  Virtual VA does not currently contain any evidence pertinent to the claim that is not already included in the paper claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  The appellant served as an airman on an aircraft carrier and he was exposed to loud noise from aircraft engines, airplane catapult equipment and flight deck noise.

2.  The evidence for and against the appellant's claim is at least in relative equipoise on the question of whether his currently diagnosed bilateral hearing loss is related to acoustic trauma in service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The appellant contends that he currently suffers from bilateral hearing loss due to noise exposure from aircraft engines and the airplane catapult system while he was on active duty and serving as an air crewman or working the flight deck.  He also contends that he was exposed to acoustic trauma during his off-duty hours because his berthing quarters were in the catapult pump room.  The appellant has indicated that he had not been exposed to loud noise since his service separation.  The appellant and his spouse also provided testimony to that effect at the August 2010 Travel Board hearing.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Where there is a 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).

This rule does not mean that any manifestations in service will permit service connection.  To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection for certain specified chronic diseases, such as sensorineural hearing loss, may be established on a presumptive basis by showing that such 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, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  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.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

A veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. §§ 3.159(a), 3.303(a) (2012); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Difficulty hearing is the sort of condition that is observable by a lay person.  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (noting that a layperson may comment on lay-observable symptoms).

The determination of whether a veteran has a ratable hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability (for VA purposes) when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2012).  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  

The United States Court of Appeals for Veterans Claims (Court) held that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss.  Id. at 157.  The Court further held that 38 C.F.R. § 3.385 operates only to establish when a hearing loss can be service connected.  Id. at 159.  It was also found that, regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.

In May 1959, the appellant underwent a separation examination.  No audiometric testing was performed; whispered voice and spoken voice testing was utilized.  The associated report indicates normal hearing (whispered voice (15/15) and spoken voice (15/15)).  There is no mention in the appellant's report of examination for separation of any problems with hearing and no complaints relating to hearing were noted.  

The appellant underwent audiometric testing at a private facility in June 2002.  The puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15
60
60
LEFT
30
15
20
65
60

The testing results show that each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  The report did not include any opinion as to the etiology or onset date of the appellant's bilateral hearing loss.

The appellant underwent VA audiometric testing in January 2009; he reported military noise exposure from being on the flight deck as a catapult crewman and from off-duty noise exposure due to his quarters being in the same area as the catapult pumps and hydraulics.  He denied having experienced recreational or occupational noise exposure after his service separation.  The puretone threshold results, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
35
65
65
LEFT
30
20
45
70
70

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear.  Each ear met the standard found in 38 C.F.R. § 3.385 for a current hearing loss disability for VA purposes.  

After reviewing the appellant's claims file, the examining audiologist noted that no audiometric testing had been performed at either the appellant's February 1956 entrance examination or at his May 1959 separation examination.  However, whispered voice testing was 15/15 on each occasion.  The examiner also noted that the appellant had denied both pre- and post-service noise exposure and that he had reported in-service noise exposure, at times without the use of hearing protection.  The examiner rendered a diagnosis of bilateral sensorineural hearing loss.  The examiner also commented that, without a separation audiogram or at least an audiogram completed within one year of the appellant's discharge from service, an opinion regarding the etiology of his hearing loss could not be rendered without "resorting to speculation."

In an updated opinion issued in November 2010, the VA examining audiologist opined that it was less likely than not that the appellant's hearing loss was caused by, or a result of, his military service.  The audiologist based this conclusion on there being no complaint of hearing loss in the appellant's service medical treatment records and no evidence of hearing loss until the 2002 private audiogram which was more than 40 years after the appellant's discharge from the Navy.  However, the audiologist did not discuss the statements of the appellant and his spouse to the effect that the appellant was manifesting signs of hearing loss shortly after his service discharge.  In addition, the examiner stated that the whispered and spoken voice tests used on the appellant during service do not give specific frequency data and do not rule out the presence of high frequency hearing loss such as the appellant's hearing loss.

The evidence unfavorable to the claim for service connection in this case consists of the service separation examination report which contains normal findings for the appellant's exterior ears and drums; the many years between service and clinical documentation of hearing loss meeting the requirements of 38 C.F.R. § 3.385; and the November 2010 negative VA opinion.  

Viewing the evidence in the light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from bilateral sensorineural hearing loss that meets the requirements of 38 C.F.R. § 3.385; the continuity of symptomatology as evidenced by the various lay statements of record to the effect that the appellant demonstrated signs of not hearing properly shortly after his discharge from service and then continuing throughout the years until his hearing loss was clinically documented in 2002; and the fact that, based on the Veteran's service record, it may be assumed that he experienced noise trauma associated with his Navy duties as an airman on an aircraft carrier.  See VA Fast Letter No. 10-35 (Sept. 2, 2010).  

The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Although there is no objective evidence to support a specific in service onset date for the appellant's sensorineural hearing loss, the Board accepts the Veteran's and his spouse's assertions of in-service noise exposure and chronicity of symptoms as credible.  

In addition, the Court has held that service department records and certain VA medical records are considered as being constructively in the claims file although they may not physically be in there.  Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993).  The Board notes that an official publication of the United States Navy Safety Center clearly indicates that long-term exposure to high levels of noise is a source of permanent hearing loss; that older ships were not designed or constructed with any modern noise reduction requirements; that on aircraft carrier flight decks, noise levels can exceed 145 decibels; that besides the high noise levels on the flight deck, the crew of Navy vessels can also be exposed to noise during off duty hours; that it is commonly recognized that a quiet recovery time is essential to provide the "rest" needed by the ears to "recuperate" from noise exposures; and that under conditions of hazardous noise levels in both shipboard occupational and recreational activities, there is limited or no audiological recovery time.  See www.public.navy.mil/navsafecen/Pages/acquisition/noise_control.aspx.

Since no other explanation other than acoustic trauma has been specifically advanced to account for the appellant's current hearing deficits, these facts and the doctrine of reasonable doubt provide a proper basis for granting service connection for bilateral hearing loss.  For these reasons, the Board finds that evidence for and against the appellant's claim is at least in relative equipoise on the question of whether the currently diagnosed bilateral hearing loss is related to acoustic trauma in service.  

The Board will resolve any doubt in the Veteran's favor and finds that the Veteran's bilateral hearing loss is as likely the result of his noise exposure in service as it is the result of some other factor or factors.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection is warranted for bilateral hearing loss.  See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs