Citation Nr: 1312951	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  08-07 764	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to February 1989.  He served in combat in Vietnam for one year.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

By way of a January 2012 Board determination, the Board ordered the claim of service connection for bilateral hearing loss to be reopened and remanded the matter on the merits for further development.  

Pursuant to the January 2012 Board remand, a VA examination was administered in February 2012.  At the February 2012 examination, the audiologist opined that it was less likely that the Veteran's hearing loss was due to service based on normal hearing acuity noted upon entrance and separation.  She did not address an upward shift in hearing acuity that was noted in service.  For that reason, in January 2013, the Board found that an additional medical opinion was necessary and sought a medical expert opinion pursuant to a VHA Directive.  See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C.A. §§ 5103A, 7109 (West 2002); 38 C.F.R. § 20.901 (2012).

In January 2013, the Board received a thorough and prompt response to the VHA Directive from a VA audiologist.  The Veteran was promptly notified of his right to review the medical opinion and right to submit additional evidence, to which his response was that he had nothing further to submit.  Thus, the Board will proceed with the adjudication of the present appeal based on the evidence of record.

A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 


FINDING OF FACT

Granting the Veteran the benefit of the doubt, the evidence of record demonstrates that bilateral hearing loss is related to active service.

CONCLUSION OF LAW

Bilateral hearing loss was incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim for entitlement to service connection for bilateral hearing loss, because it is being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Where there is a chronic disease shown in service, 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).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); see Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  

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 addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that his current bilateral hearing loss is due to noise exposure during service.  His military occupational specialty was hospital corpsman.  The Board has conceded that the Veteran was exposed to acoustic trauma during his period of active service.  

By way of pertinent history, service treatment records, to include the January 1969 entrance examination, and examinations in November 1972, July 1978, July 1986, February 1988, July 1988, and December 1988, reveal that the Veteran did not meet the criteria for a hearing disability pursuant to VA standards.  See 38 C.F.R. § 3.385.  

However, the Board notes that pure tone thresholds measured during service demonstrate some degree of worsening in hearing acuity, or upward shift, at various points from entrance until separation.  Such upward shift in pure tone thresholds are particularly notable when comparing the November 1972 audiogram to the July 1978 audiogram, and when comparing the July 1978 audiogram to the July 1986 audiogram.  

Subsequent to service at a January 1999 VA audiology examination, the Veteran was diagnosed with normal to moderately severe high frequency sensorineural hearing loss in both ears.  During the examination, the Veteran reported a 14-year history around artillery while in service and one year in Vietnam.  He denied any other post-service occupational noise exposure.  His recreational noise exposure was limited to lawn mowers and weed eaters.  

VA outpatient treatment records from 2006 and 2007 show treatment for symptoms associated with bilateral hearing loss (e.g., hearing aids).

The Veteran underwent VA audiology examinations in September 2007 and February 2012, both of which confirmed a hearing loss disability pursuant to VA standards.  At the February 2012 examination, the audiologist opined that it was less likely that the Veteran's hearing loss was due to service as the Veteran's hearing was normal upon entrance and separation, and she found no reasonable basis for delayed-onset hearing loss.  The examiner did not address an upward shift in hearing acuity in service.

The absence of in-service evidence of hearing loss during the Veteran's period of active duty is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  If the record shows evidence of in-service acoustic trauma and in-service audiometric results indicate an upward shift in tested thresholds, and if post-service audiometric testing results meet the requirements of 38 C.F.R. § 3.385, it must be determined whether there is a medically sound basis to attribute the post-service findings to inservice injury, or whether they are more properly attributable to intercurrent causes.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  For the above reasons, the Board found the February 2012 VA examination to be inadequate.

As a result, in January 2013, the Board sought the opinion of a medical expert pursuant to the VHA Directive to clarify the etiology of the Veteran's hearing loss.  The VHA audiologist submitted an opinion that was based upon a review of the Veteran's history and rendered an objective opinion based on sound medical principles and the evidence of record.  The VHA audiologist carefully reviewed the multiple audiometric examinations that were conducted during service, as well as those conducted after discharge in January 1999, September 2007 (VA examination), and February 2012 (VA examination).  

The VHA audiologist weighed the evidence that supports a finding that in-service acoustic trauma is related to current hearing loss and the evidence that supports a finding against such a link.  In sum, the VHA audiologist acknowledged the following facts in his opinion: (1) there is an absence of clinical evidence supporting the idea that hearing loss can have a delayed onset; (2) the Veteran's post-service recreational noise exposure could have produced potentially damaging levels of noise that may have impacted his hearing over the years; and (3) there is a material decline in hearing acuity over the years covering the three post-service audiograms (January 1999, September 2007, February 2012).  

However, VHA audiologist ultimately concluded that the evidence supports a finding that links the in-service noise exposure to the Veteran's current hearing loss disability.  See 38 C.F.R. § 3.303(d).  Considering the evidence in light of Hensley, the audiologist noted that there is direct audiometric evidence that supports the Veteran's contentions as there is a well-documented shift towards poorer hearing sensitivity that is apparent between the November 1972 audiogram and the 1986/1988 audiograms (examinations that approximate his hearing at the time of discharge).  Thus, the audiologist concluded that there is evidence that both supports and refutes the Veteran's contention of acoustic trauma as the proximate cause of his bilateral hearing loss.  However, taking the evidence in the light most favorable to the Veteran, to include the Veteran's contentions and the clear evidence of worsening in hearing sensitivity during service that is not attributable to other more convincing factors other than acoustic trauma, the audiologist opined that it is at least as likely as not (50 percent probability) that the current hearing loss disability is related to the Veteran's noise exposure in service.

The Board finds the VHA audiologist's opinion to be highly probative as it is based upon the expert's knowledge and skill in analyzing the medical data.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467 (1993); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 123, 124-5 (2007) (a medical examiner must support his conclusion with an analysis that is adequate for the Board to consider and weigh against contrary opinions; an examination is adequate when based on consideration of the Veteran's prior medical history and examinations and also described the disability in sufficient detail to allow the Board to make a fully informed evaluation).  In this case, the VHA audiologist certainly performed an extensive review of the pertinent medical evidence as well as considered the Veteran's contentions, and he provided an etiological opinion that had sound evidentiary bases.

Thus, the evidence of record clearly supports a finding that the Veteran's current hearing loss for VA purposes is due to active service.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Accordingly, service connection for bilateral hearing loss is warranted.


ORDER

Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits.




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs