Citation Nr: 1313486 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 12-16 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from June 1957 to June 1977, which included service in the Republic of Vietnam from November 1967 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for left ear hearing loss and tinnitus. While the Veteran perfected an appeal of his claim for service connection for tinnitus, the RO granted the benefit sought, that is service connection for tinnitus, characterized as secondary to service-connected right ear hearing loss, in a June 2012 rating decision. As the Veteran has not voiced his disagreement with either the assigned evaluation or the effective date, the claim is no longer in appellate status. FINDING OF FACT A left ear hearing loss disability had onset in service. CONCLUSION OF LAW The criteria for service connection for a left ear hearing loss disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(d), 3.385 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the Board is granting the claim of service connection for a left ear hearing loss disability, VCAA compliance need not be addressed further. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a presumptive basis if sensorineural hearing loss becomes manifest to a compensable degree within the first year after discharge from service even if not shown during service. 38 C.F.R. §§ 3.307, 3.309(a). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 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. The threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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). Evidence The service treatment records, covering the period from June 1957 to June 1977, show that hearing acuity was measured by whispered voice testing on entrance to service, with results of 15 of 15 bilaterally. During service, hearing acuity was assessed by audiogram in October 1961 and January 1963, prior to the Veteran's service in the Republic of Vietnam, and in June 1969 and April 1973, after his Vietnam service. For the audiograms conducted in 1961 and 1963 as the audiograms were conducted before October 31, 1967, the findings must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Board has converted the ASA units to ISO units as shown with the conversion numbers inside the parenthesis. The numbers outside the parenthesis are the numbers as recorded in the service treatment records. For the audiograms in 1969 and 1973 no conversion is necessary. In October 1961, an audiogram showed pure tone thresholds of: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 0 (10) - 20 (25) LEFT 15 (30) 5 (15) 0 (10) - 15 (20) In January 1963, an audiogram showed pure tone thresholds of: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) - 10 (15) LEFT 0 (15) 5 (15) 5 (15) - 5 (10) From November 1967 to November 1968, the Veteran served in the Republic of Vietnam. In June 1969, an audiogram showed pure tone thresholds of: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 25 30 LEFT 5 5 10 20 20 Mild, high frequency hearing loss was listed as a diagnosis. In April 1973, an audiogram showed the pure tone thresholds of: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 30 40 LEFT 15 15 25 25 35 Mild high tone bilateral hearing loss was listed as a diagnosis. The service treatment records do not include a report of an examination for retirement. After service, in February 1999, private medical records show a diagnosis of hearing loss. In July 2000, a private audiogram contained a diagnosis of moderately severe high frequency sensorineural hearing loss. The graphed results indicate that the pure tone thresholds at 2000, 3000, and 4000 Hertz were greater than 40 decibels. In October 2008, VA records include a diagnosis of hearing loss. In October 2008, the Veteran filed the current claim of service connection for a bilateral hearing loss disability. In December 2008, on VA audiology consultation, the Veteran described gradually increasing hearing loss since service. On VA audiometric examination in October 2009, the diagnosis was bilateral moderate to severe sensorineural hearing loss, as defined by VA, as all tested pure tone thresholds were greater than 40 decibels. The VA examiner linked the Veteran's right ear hearing loss to service, noting that audiometric data indicated that the Veteran developed hearing loss during his active service, as defined by VA regulations. The VA examiner stated that the left ear hearing loss was not caused by or related to service, stating that there was no audiometric evidence of left ear hearing loss for VA purposes during service, although acknowledging that the Veteran's left ear hearing acuity underwent a "definite" threshold shift during service. In December 2009, the RO granted service connection for a right ear hearing loss disability and denied service connection for a left ear hearing loss disability. On a VA audiometric examination in February 2012, the diagnosis was bilateral sensorineural hearing loss based on evidence of pure tone thresholds above 40 decibels in all tested frequencies, but the VA examiner did not offer an opinion as to the cause of the left ear hearing loss. On a VA audiological examination in May 2012, the diagnosis was bilateral hearing loss. The VA examiner expressed the opinion that bilateral hearing loss was at least as likely as not related to service. The VA examiner characterized the Veteran's in-service audiograms as reflecting a clinically significant threshold shift at all frequencies tested in each ear. Based on the Veteran's noise exposure during service in Vietnam, the in-service threshold shifts in hearing acuity, and current evidence of bilateral sensorineural hearing loss, the VA examiner concluded that bilateral hearing loss was at least as likely as not caused by noise exposure in service. Analysis The discharge record, a DD Form 214, shows that the Veteran served in the Republic of Vietnam during the Vietnam era. Consistent with the circumstances and conditions of the Veteran's service in Vietnam, namely, a duty station near an area of flight operations for helicopter and fighter aircraft, the Veteran's statements about noise exposure in service are credible, and the Board finds sufficient evidence to establish in-service noise exposure. Also, on the basis of the audiograms in October 2009, in February 2012, and in May 2012, there is evidence of current left ear hearing loss disability under 38 C.F.R. § 3.385, as the auditory thresholds in all tested frequencies were 40 decibels or greater in the left ear. The remaining element to prove in order to establish service connection is the causal relationship between the current left ear hearing loss disability and noise exposure in service, the so-called "nexus" requirement. In this case there is competent medical evidence for and against the claim, consisting of the opinions of the VA audiologists who conducted VA audiological examinations in October 2009 and in May 2012. Competent medical means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. In October 2009, the 2009 VA examiner expressed the opinion that the current left ear hearing loss was not caused by or the result of military service, as the audiometric data failed to show that the Veteran developed a left ear hearing loss disability during service. In May 2012, the VA examiner expressed the opinion that the current left ear hearing loss was at least as likely as not related to noise exposure in service, as the left ear hearing acuity underwent a clinically significant threshold shift during service. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner, who conducted the VA examination in October 2009, noted that the Veteran's left ear hearing acuity underwent a threshold shift during service, but concluded that the current left ear hearing loss was not caused by or related to service, as in-service audiograms failed to show a left ear hearing loss disability as defined by VA regulation [38 C.F.R. § 3.385]. While acknowledging the in-service threshold shift during service, the VA examiner offered no rationale as to why the threshold shift was not evidence of impaired hearing, resulting in the current left ear hearing loss disability. The Board is left with the impression that the VA's examiner's opinion was based on the fact that a left hearing loss disability under 38 C.F.R. § 3.385 was not affirmatively shown in service, which is only one theory of service connection under 38 C.F.R. § 3.303(a). The Veteran may also establish service connection on the theory that the post-service diagnosis is related service. 38 C.F.R. § 3.303(d). As the VA examiner did not address this theory of service connection, the opinion has limited probative value because the opinion does apply medical analysis to the significant facts of the case. The VA examiner in May 2012 diagnosed bilateral hearing loss. The VA examiner expressed the opinion that bilateral hearing loss was at least as likely as not related to service. The VA examiner characterized the Veteran's in service audiograms as showing a clinically significant threshold shift at all frequencies tested in each ear. Based on the Veteran's noise exposure during service in Vietnam, the in-service threshold shifts in hearing acuity, and current evidence of bilateral sensorineural hearing loss, the VA examiner concluded that bilateral hearing loss, right and left ear hearing loss, was at least as likely as not caused by noise exposure in service. The Board finds that the opinion of the VA examiner in May 2012 is persuasive evidence in favor of the claim as the VA examiner accounted for the significant facts of the case and applied medical analysis to the facts to reach the conclusion in the opinion. As the opinion of the VA examiner is favorable to the claim, the Board need not address further the question of whether or not the Veteran is competent to render an opinion on the causal relationship between the current left ear hearing loss disability and noise exposure in service. As all three elements for the claim of service connection for a left ear hearing loss disability have been established, the Board finds that the preponderance of the evidence is in favor of the claim, and the Veteran prevails. ORDER Service connection for a left ear hearing loss disability is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs