Citation Nr: 1312757	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  12-18 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Michael Holincheck, Counsel


INTRODUCTION

The Veteran served on active duty from January 1954 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013.  A transcript of the hearing is associated with the claims folder.

Please note 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).


FINDING OF FACT

The Veteran currently has a bilateral hearing loss disability and there is a reasonable basis to attribute such disability to his active military service.


CONCLUSION OF LAW

The Veteran has a bilateral hearing loss disability that was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).







REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Background

The Veteran served on active duty from January 1954 to February 1973.  His personnel records reflect that he served in various jobs in aviation during his entire period of service.  The records show the Veteran with assignments involving maintenance of aircraft for many years during service, to include deployment on an aircraft carrier with his squadron.  

The Veteran submitted a claim for service connection for hearing loss and tinnitus in August 2010.  He related that his disabilities were due to his noise exposure during service.

The Veteran's service treatment records (STRs) are negative for complaints or treatment for hearing loss or tinnitus.  His 1954 enlistment physical examination shows that the whispered voice test, with 15/15 results, was used to test his hearing.  The whispered voice and spoken voice tests were used to test his hearing at the time of reenlistment physical examinations in 1957 and 1961, respectively.  The Veteran had another reenlistment examination in March 1967.  He had audiometric testing of his hearing the time with the following results:  




HERTZ 


Mar. 1967
500
1000
2000
3000
4000
RIGHT
-10 (5))
-5 (5)
-10 (0)
0 (10)
5 (10)
LEFT
-10 (5)
-10 (0)
-5 (5) 
0 (10)
20 (25)

(The figures in parentheses are based on International Standards Organization (ISO)/American National Standards Institute (ANSI) standards to facilitate data comparison.  Prior to November 1967, audiometric results were reported in American Standards Association (ASA) standards in the STRs.  Standard equivalents have been added to the respective decibel losses reported to equate to findings from tests conducted after 1967.)  

In addition to the above results, the Veteran had a 20 (30) decibel loss at 6000 Hertz in both ears.  

The Veteran had a retirement physical examination in January 1973.  He again had his hearing evaluated by audiometric testing with the following results:




HERTZ 


Jan. 1973
500
1000
2000
3000
4000
RIGHT
10
10
15
20
X
LEFT
20
15
15
20
X

No results were listed for testing at 4000 Hertz.  

The Veteran was afforded a VA audiology examination in November 2010.  The examiner noted the Veteran's years of service.  The examiner reviewed the results of hearing tests at the time of the several physical examinations in service.  The examiner said the Veteran first noted a hearing loss in the 1970s.  The examiner cited to the January 1973 examination results and noted that the Veteran was not test above 3000 Hertz for either ear.  

The Veteran reported noise exposure in service from being around the flight line.  He worked around aircraft as an aviation administrator and in working on the aircraft.  The Veteran reported a post-service work experience as a truck driver with some noise exposure from diesel engines.  The Veteran was noted to complain of constant tinnitus that had its onset in service.  The audiometric testing showed the following decibel losses at the tested levels:




HERTZ 



500
1000
2000
3000
4000
RIGHT
30
40
45
55
65
LEFT
30
45
55
60
70

The Veteran had speech recognition scores of 68 percent for the right ear and 64 percent for the left ear.  The examiner said the results of the audiometric testing revealed a mild sensorineural hearing loss for the low frequencies that sloped to a moderately severe hearing loss for the high frequencies bilaterally.  She said that the Veteran's word recognition scores were poor bilaterally.  She also said there was subjective tinnitus present.  

The examiner said the Veteran reportedly had normal hearing on entry to military service.  She said the separation physical examination did not contain audiometric data above 3000 Hertz.  She added that noise induced hearing loss affected the higher test frequencies.  Therefore, there was no objective evidence in the STRs to prove or disprove hearing loss during service without resorting to speculation.  

In regard to the Veteran's tinnitus, the examiner said that tinnitus can occur as a result of noise exposure and/or acoustic trauma in the absence of hearing loss.  The examiner stated that it was known the Veteran was exposed to extreme hazardous noise and reported the onset of tinnitus following noise exposure in service.  She concluded that the Veteran's tinnitus was at least as likely as not related to his noise exposure in service.

The Veteran's claim for service connection for tinnitus was granted in April 2011 but his claim for service connection for bilateral hearing loss was denied.  The basis for the denial was the VA examiner's opinion as not being able to say the current hearing loss was related to military service.

The Veteran perfected his appeal in June 2012.  He submitted a number of personnel record entries that documented his aviation assignments.  He said that he was constantly exposed to aircraft engine noise through his many assignments.  He said his hearing loss had its onset in service.

The Veteran and his spouse testified at a Travel Board hearing in March 2013.  The Veteran said he noticed his hearing loss in the 1960s while still in service.  He related his job requirements in service and how he was exposed to aircraft engine noise.  His spouse, who was married to him at the time, concurred with the Veteran's assessment of when the hearing loss was noticed.  She also testified that the hearing loss manifested itself as the Veteran having the television at a higher volume or her having to speak louder or repeat what she said to the Veteran.  The Veteran also testified that he had received treatment from VA for his hearing loss for over 10 years and had been issued hearing aids.

The Veteran had provided notice of treatment for his hearing from VA since January 2002.  However, no records were obtained in response to his notice.

II.  Analysis

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (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).

In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition.  Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) or the United States Court of Appeals for the Federal Circuit (Federal Circuit), lay observation is competent.  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  

Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).  

For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 issued several opinions that are helpful in evaluating the Veteran's claim.  In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the Court found that the absence of a documented hearing loss while in service is not fatal to a claim for service connection.  Further, in Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993), the Court noted that, when a veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service.  Finally, in Peters v. Brown, 6 Vet. App. 540, 543 (1994), the Court said that a veteran may establish service connection for a disability not manifested during service, or within the statutory presumptive period, with evidence that demonstrates that the disability actually resulted from a disease or injury incurred in service.

The Veteran is competent to say that he experienced problems with his hearing in service that has continued to the present.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Veteran provided credible lay statements and testimony regarding his noise exposure during service.  38 U.S.C.A. § 1154(a) (West 2002).  His spouse has provided credible testimony to support the Veteran's belief he noted some hearing loss while in service.  Moreover, the Veteran's statements of noise exposure in service have been accepted by VA as the VA examiner provided a positive opinion for the Veteran's tinnitus being related to such noise exposure in service.  

The Veteran's personnel records and his testimony establish that he was exposed to acoustic trauma in service on a regular basis, as does his grant of service connection for tinnitus.  His STRs are negative for a hearing loss for VA purposes under 38 C.F.R. § 3.385.  See Hensley, 5 Vet. App. at 157 (The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.); see also VA Training Letter 10-02, dated March 2010, p. 16 (clinically normal hearing is between 0 and 25 decibels for the frequencies 250 to 8000 Hertz).

The first evidence that satisfies the criteria for a VA hearing loss disability is the VA examination report from November 2010 that demonstrated a hearing loss that satisfied the requirements of 38 C.F.R. § 3.385.  Thus, there is evidence of a current hearing loss disability; however, there is no competent medical evidence of record to establish a hearing loss disability to a compensable level within the first year after service.  See Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009).  

The VA examiner looked only to the Veteran's audiogram at separation as the basis for her opinion.  She noted that the Veteran was not tested above 3000 Hertz and concluded she could not provide an opinion that would "prove or disprove" the hearing loss was related to service.  The examiner did not comment on what appeared to be changes in the audiometric results from the 1967 audiogram.  Nor did the examiner comment on the 1967 audiogram results at the 6000 Hertz level with the conversion factor.  

In view of the totality of the evidence, the Board finds that it is at least as likely as not that bilateral hearing loss was incurred in active service.  This determination is based on the Veteran's credible account of noise exposure during service, the acceptance of his account, to include the granting of service connection for tinnitus based on the noise exposure, his documented current hearing loss, and the determination by the VA examiner that she could not say whether the Veteran's hearing loss was or was not related to service.  The Board finds the evidence to be at least in equipoise and, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
MICHAEL MARTIN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs