Citation Nr: 1313676	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  12-12 068	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from August 1950 to May 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.  Although the Board recognizes that the Veteran lives within the jurisdiction of the RO in Oakland, California, because he is related to an employee at that RO, the RO in Reno, Nevada, retains jurisdiction in this appeal.  See VA Form 21-0344a, "Notification Of An Employee or Employee-Relative Claims File," dated March 15, 2010.

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).


FINDINGS OF FACT

1.  The record evidence indicates that the Veteran was exposed to significant in-service acoustic trauma as a U.S. Navy aircraft engine mechanic.

2.  Resolving any reasonable doubt in the Veteran's favor, he experienced continuous symptomatology due to bilateral hearing loss since his service separation.

3.  The record evidence suggests that the Veteran's current bilateral hearing loss is related to active service, to include as due to in-service noise exposure.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence.  38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012).  With respect to the Veteran's service connection claim for bilateral hearing loss, given the favorable disposition of the action here, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Service Connection for Bilateral Hearing Loss

The Veteran contends that he incurred bilateral hearing loss during active service.  He specifically contends that he was exposed to significant in-service acoustic trauma while serving as an aircraft engine mechanic aboard U.S. Navy ships during active service which caused or contributed to his current bilateral hearing loss.  

Law & Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Clinically, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).   For compensation purposes, however, 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.

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  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.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  See Savage, 10 Vet. App. at 495-498.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a).  Because sensorineural hearing loss (as an organic disease of the nervous system) is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim.

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

Factual Background

The Veteran's service treatment records show no complaints or history of bilateral hearing loss at his enlistment physical examination in August 1950 when his hearing was "15/15" (or within normal limits) in both ears.  At the Veteran's separation physical examination in May 1954, his hearing again was "15/15" (or within normal limits) in both ears.  There was no medical history report completed as part of the Veteran's separation physical examination that was included in his service treatment records.

On VA examination in April 1955, the Veteran's hearing was normal bilaterally.  While hospitalized for observation for possible cardiac problems at a VA Medical Center in June and July 1955, the Veteran stated that his hearing "has always been good."

When he filed his service connection claim for bilateral hearing loss in January 2010, the Veteran asserted that he had experienced this disability continuously since his active service in the U.S. Navy.  In statements on a February 2010 VA Form 21-4138, the Veteran also asserted that he had been exposed to acoustic trauma during active service in the U.S. Navy "which damaged my hearing."

On VA audiology examination in March 2010, the Veteran's complaints included "decreased hearing in general conversation."  His situation of greatest difficulty was "trouble in general conversation."  He reported being an aircraft mechanic and being exposed to in-service acoustic trauma from aircraft engines and ship noise during active service.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records, noting that there were "no results listed on enlistment exam 8/15/1950, [and] normal whisper test bilaterally dated 5/17/1954.  A whisper test is not sensitive to high frequency hearing loss, is not frequency specific, and does not show shifts in threshold."  The Veteran denied any post-service occupational noise exposure and reported only "standard power tool use" as his post-service recreational noise exposure.  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
25
35
55
75
LEFT
35
45
40
75
95

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear.  The VA examiner opined that the Veteran's hearing loss was less likely than not caused by or a result of in-service noise exposure.  The rationale for this opinion was that the Veteran's case history and configuration of hearing loss "is not consistent with" noise exposure as the sole contributing factor to his current bilateral hearing loss (which the VA examiner characterized as "some hearing loss in low frequencies of [the] left ear."  The rationale also was that a review of the Veteran's service treatment records showed a normal whispered voice hearing test at his separation from service "and it is not likely that [the Veteran] would have passed whisper test with his" current bilateral hearing loss severity.  The diagnosis was asymmetrical mild to profound sensorineural hearing loss, left greater than right.

In statements on his May 2012 substantive appeal (VA Form 9), the Veteran contended:

I believe that the VA decided my claim incorrectly because my military occupational specialty as an aircraft engine mechanic is conceded as a high probability of noise exposure in service.  My entrance and separation exams only include whisper tests, which are not reliable.  There are no audiometric measurements in my service treatment records.  When I left the military service in 1954, the examiner stated then my hearing had been damaged.  My ability to hear was worsened by my exposure to loud noises, with no hearing protection while in the service from 1950 to 1954.

The Veteran's service representative contended in a March 2013 Appellant's Brief submitted directly to the Board that the March 2010 VA examination was inadequate for purposes of adjudicating the service connection claim for bilateral hearing loss.  He specifically contended that the VA examiner's opinion rationale was inadequate because it relied on the absence of bilateral hearing loss at the Veteran's service separation.

Analysis

The Board finds that the evidence supports granting the Veteran's claim of service connection for bilateral hearing loss.  The Veteran has maintained that his bilateral hearing loss began during active service in the U.S. Navy, including as a result of significant in-service acoustic trauma experienced while serving as an aircraft engine mechanic.  The competent evidence supports his assertions concerning in-service incurrence of bilateral hearing loss due to significant acoustic trauma.  For example, although his service treatment records show no complaints of or treatment for bilateral hearing loss at any time during active service, his DD Form 214 confirms that he served as a U.S. Navy aircraft engine mechanic.  Thus, the Veteran's in-service noise exposure to significant acoustic trauma is presumed.  The competent post-service evidence also shows that the Veteran currently experiences bilateral hearing loss which could be attributable to service.  

The Board acknowledges the Veteran's recent lay assertions that his current bilateral hearing loss began during active service and has continued since his service separation.  The evidence (in this case, the Veteran's lay statements) is in relative equipoise as to the whether he has experienced continuous disability due to bilateral hearing loss since his service separation, however.  For example, when seen on VA examination in April 1955 (within 1 year of his separation from service in May 1954), the Veteran's hearing was normal bilaterally.  The Veteran also reported that his hearing had "always been good" while hospitalized for observation of possible cardiac problems at a VA Medical Center in June and July 1955, slightly more than 1 year after his service separation in May 1954.  See Rucker v. Brown, 10 Vet. App. 67 (1997) (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  By contrast, the Veteran has reported consistently in statements sent to the RO since his filed his VA disability compensation claim in January 2010 and when examined for VA purposes in March 2010 that he experienced continuous bilateral hearing loss since his service separation.  

The Board observes in this regard that a Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).   Thus, the Veteran is competent to report that he has experienced continuous disability due to bilateral hearing loss since service.  The Veteran's inconsistency in reporting when he first experienced bilateral hearing loss after his service separation calls in to question the probative value of his statements as to the continuity of symptomatology of this disability following service, however.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); and Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service).

The Board acknowledges that, following VA examination in March 2010, a VA examiner opined that the Veteran's bilateral hearing loss was not related to active service because a review of his service treatment records showed a normal whispered voice hearing test at separation from service and it was unlikely that the Veteran would have passed this test given the current severity of his bilateral hearing loss.  Having reviewed the March 2010 VA examination report, to include the VA examiner's negative nexus opinion and rationale concerning the contended causal relationship between the Veteran's bilateral hearing loss and active service, the Board finds that it is less than probative because it is internally inconsistent and contains an insufficient rationale.  

At the outset of the March 2010 VA examination, the VA examiner noted the Veteran's normal whispered voice hearing test at his separation physical examination in May 1954.  This examiner then appears to question the diagnostic value of a whispered voice hearing test by stating that it is "not sensitive to high frequency hearing loss, is not frequency specific, and does not show shifts in threshold."  Despite these apparent problems with relying on a whispered voice hearing test, the March 2010 VA examiner specifically relied upon the Veteran's normal whispered voice hearing test at separation as support for her negative nexus opinion concerning the contended causal relationship between his current bilateral hearing loss and active service.  This inconsistency is compounded by the fact that the VA examiner specifically found that the Veteran's in-service noise exposure caused or contributed to his current tinnitus despite the apparently normal whispered voice hearing test at service separation.  (The Board notes parenthetically that this examiner provided no rationale for her positive nexus opinion between the Veteran's tinnitus and active service and did not answer the question posed in the examination report concerning "whether the tinnitus is due to the same etiology (or causative factor) as the hearing loss.")  It is not clear from a review of the March 2010 examination report why the examiner found the Veteran's in-service noise exposure significant enough to cause his tinnitus but not his bilateral hearing loss when he clearly asserted that both disabilities arose from a common etiology (in-service noise exposure working as an aircraft engine mechanic).  The Board observes in this regard that service connection currently is in effect for tinnitus.  

The March 2010 VA examiner also concluded that the absence of hearing loss at service separation based on a normal whispered voice hearing test (the general accuracy of which she herself questioned earlier in the examination report) made it unlikely that the Veteran's current bilateral hearing loss was related to service.  This suggests that the March 2010 VA examiner found the absence of contemporaneous service treatment records documenting in-service bilateral hearing loss to be persuasive evidence supporting her negative nexus opinion.  The Court has held that the lack of contemporaneous service treatment records is not a bar to granting service connection.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); and Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  The Court also has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.  See Barr, 21 Vet. App. at 303.  Given the internal inconsistencies and insufficient rationale in the March 2010 VA examination report, the Board finds that it is inadequate for purposes of evaluating the Veteran's claim of service connection for bilateral hearing loss.  See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (finding that medical opinions must be based on "sufficient facts or data").

The record evidence demonstrates that the Veteran experiences current bilateral hearing loss which could be attributable to active service, to include in-service acoustic trauma.  The evidence supports the Veteran's assertions concerning in-service incurrence of bilateral hearing loss due to significant acoustic trauma while working as a U.S. Navy aircraft engine mechanic.  The Board recognizes that it must resolve any reasonable doubt in the Veteran's favor, to include whether he has experienced continuous disability due to bilateral hearing loss since his service separation.  See 38 C.F.R. § 3.102.  Accordingly, although there is evidence (in this case, the Veteran's lay statements) both for and against a finding of continuity of symptomatology for bilateral hearing loss since service, after resolving any reasonable doubt in the Veteran's favor, the Board finds that he experienced continuous disability due to bilateral hearing loss since his service separation.  See Walker, 708 F.3d at 1331; see also 38 C.F.R. § 3.309(a).  In summary, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs