Citation Nr: 1313246	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  08-38 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Hinton, Counsel

INTRODUCTION

The Veteran served on active duty from December 1957 to December 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought.  The case is currently under the jurisdiction of the Montgomery, Alabama RO.


FINDING OF FACT

The Veteran has bilateral hearing loss disability for VA compensation purposes that is related to active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).


The Veterans Claims Assistance Act of 2000 (VCAA)

On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  


REASONS AND BASES FOR FINDING AND CONCLUSION

In general, service connection may be granted for a 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.  Service connection generally requires credible and competent evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability.   38 C.F.R. § 3.310(a).

If a Veteran served 90 days or more, and an organic disease of the nervous system becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).   

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

For 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  

With audiological examinations, the threshold for normal hearing is from 0 decibels (dB) to 20 dB; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).  However, unless a hearing loss as defined under 38 C.F.R. § 3.385 is shown, VA may not grant service connection for hearing loss.  On a whispered voice test a finding of 15/15 is considered normal.  See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992).

The Veteran claims service connection for bilateral hearing loss disability as being due to exposures to a hazardous levels of noise and resulting acoustic trauma from service related duties as a teletype operator during his six years of service.  The Veteran's service records show that his military occupational specialty was cryptographer, which would be consistent with his report of exposure to loud hazardous noise as a teletype operator.  The Board finds such duties in service to effectively constitute a significant extent of hazardous noise exposure that can result in acoustic trauma.  
 
Review of the Veteran's service treatment records suggest they were damaged by fire, which resulted in missing dates for enlistment and discharge examinations that were presumably conducted at the approximate entry and discharge dates for the Veteran's period of service.  Nonetheless, the undated report of examination at enlistment shows that examination of the ears and drums were normal, and hearing was measured on whispered voice as 15/15.
 
Service treatment records dated between January 1960 and November 1962 show numerous clinical visits for ear ache and other related complaints, and treatment for a number of diagnosed bilateral ear conditions in service.  During service, assessments associated with ear complaints included acute secretory otitis media, acute pharyngitis and otitis media, otitis media, recurring ear difficulty, and lymphoid hyperplasia (tonsils and adenoids) history of sore throat and obstruction of Eustachian tubes.  A graphic audiogram dated in March 1961 shows audiology findings indicating some extent of hearing loss bilaterally at that time.

The undated discharge examination report shows that the Veteran reported he had no ear problems or running ears at that time.  On examination, ears and drums were normal.  Hearing on whispered voice was measured as 15/15.  Audiological test results during the examination show, after conversion to ISO (International Standards Organization units), pure tone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
15
10
LEFT
20
15
15
15
10

VA treatment records are dated from 2002 to 2009.  When seen in April 2002 the right and left ear tympanograms were essentially retracted.  The provider assessed Eustachian tube dysfunction.  The Veteran was seen in April 2002 for symptoms assessed as poor hearing, at which time he requested hearing aids.

When seen in May 2002 for VA audiology consultation, the Veteran reported having slow progressive-type hearing problems secondary to occupational noise exposure from working as a truck driver.  He reported that bilateral tinnitus had been present for many years, and that he had had frequent bouts of ear pathology usually accompanied by ear pain and aural fullness.  His left ear was presently full or plugged up.  Audiology testing showed that pure tone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
65
65
65
LEFT
25
40
60
60
65

Speech recognition was 84 percent in the right ear and 88 percent in the left ear.

When seen for VA audiology consultation in December 2002, audiology testing showed that pure tone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
30
70
75
85
LEFT
25
35
50
60
70

Speech recognition was 80 percent in the right ear and 84 percent in the left ear.

During a May 2007 VA examination the Veteran reported a history of eight years of unprotected noise exposure associated with communication punch/transmission machines and small arms fire.  He reported that his civilian and recreational noise history were both unremarkable.  He also reported a medical history significant for bilateral myringotomies, ear infections, and tube insertion.  He reported he had bilateral constant tinnitus that onset during service following weapons firing.  




Audiological test results during the May 2007 VA examination show that pure tone thresholds in decibels were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
80
75
75
LEFT
35
50
65
65
70

Speech recognition was 88 percent in the right ear and 84 percent in the left ear.

The examiner opined that it was as likely as not that the Veteran's unprotected military noise exposure contributed to the onset of his tinnitus; however, it is less likely than not that this military noise exposure caused his current hearing loss.  The examiner based the latter opinion on the fact that at separation, his hearing was deemed normal for both ears.  And although there was some hearing loss noted in service, the hearing loss had resolved on his separation.

The report of an April 2012 VA examination shows that the examiner reviewed the claims file and conducted audiological testing.  Audiological test results show that pure tone thresholds in decibels were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
40
75
90
80
LEFT
30
45
60
75
80

Speech recognition was 76 percent in the right ear and 84 percent in the left ear.  The examiner diagnosed sensorineural hearing loss in the right ear, and mixed hearing loss in the left ear.

The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service.  The rationale for this opinion was that the Veteran's exit audiogram indicated 5 decibel hearing loss thresholds at every frequency tested.  The examiner noted however, that the Veteran had significant ear problems throughout his military service that should be addressed by an ENT physician.  The examiner opined that the Veteran had no hearing loss prior to service based on entrance examination findings in the normal range.

Though no hearing loss as defined by VA is shown during active service, pursuant to 38 C.F.R. § 3.303(d), and applicable case law, service connection may still be established if it is shown that a current hearing loss is related to service.  

There is sufficient evidence of a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, and of an accumulation of exposures to hazardous noise in service due to a history of years of unprotected noise exposure associated with communication punch/transmission machines and small arms fire, consistent with the Veteran's military duties.  Clearly, the Veteran also had a significant extent of abnormal ear symptomatology shown during much of the last half of his period of service.  

Clinical records show that the Veteran has reported occupational noise exposure from working as a truck driver after service, however, during VA examination the Veteran has reported that his civilian and recreational noise history were both unremarkable.  

Service connection is in effect for tinnitus on the basis of exposure to small arms noise in service.  Most recently, the April 2012 VA examiner opined that the Veteran had tinnitus that was at least as likely as not caused or a result of military noise exposure.  At that time the examiner opined that bilateral hearing loss was not likely due to service based on threshold levels of 5 decibels at all Hertz levels.  However, the facts on which the opinion is based are simply wrong as the examiner failed to convert the results to ISO units and the actual degradation in hearing is significantly higher than 5 decibels at all relevant frequencies.
  
Given the foregoing, including the strong evidence of exposure to military-related hazardous noise, and inservice ear medical problems, the Board finds that, on affording the Veteran the benefit of any remaining doubt, service connection is warranted for bilateral hearing loss disability.  



ORDER

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




____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs