Citation Nr: 1314780 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-46 184 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to November 1952. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision that denied service connection for bilateral sensorineural hearing loss. The Veteran timely appealed. In February 2012, the Veteran and his wife testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In May 2012, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 Resolving all doubt in the Veteran's favor, a bilateral hearing loss disability had its onset in service. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. As a preliminary matter, the Board notes that most of the Veteran's service treatment records are not available and may have been destroyed in a fire at the National Personnel Records Center (NPRC). Relevant records, including the Veteran's induction and discharge examinations, have been obtained from the Army Surgeon General's Office. In addition, the Veteran's service personnel records have been associated with the claims file; and the Veteran also has indicated that he has no other information or evidence to substantiate his claim. Accordingly, it is incumbent upon the VA to afford the Veteran's claim heightened consideration due to the unfortunate loss of most of his service treatment records. See, e.g., Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). In this case, the Veteran contends that he was exposed to excessive noise while on the shooting range daily as a small arms instructor for 18 months in active service; and that he did not wear any hearing protection in active service, and his hearing loss progressively has worsened since then. He later was diagnosed with bilateral sensorineural hearing loss. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The available service treatment records consist of the Veteran's induction examination in March 1951, showing that the Veteran's hearing was 15/15, bilaterally, for whispered voice and spoken voice; and his separation examination in October 1952, showing that the Veteran's hearing was 15/15, bilaterally, for whispered voice. No hearing loss disability was recorded. In November 2008, the Veteran explained that he was a firearms instructor in the Air Force in the early 1950's; and that he did not use hearing protection at that time. He mostly fired handguns and some rifles. Following his military discharge, the Veteran reportedly worked in banking for 33 years. He did hunt once or twice yearly post-service-at first without hearing protection, and then with muffs for target shooting and foam for big game. The Board finds the Veteran's lay statements to be credible for purposes of establishing incidents of excessive noise exposure in active service. His statements are consistent with his personnel records which indicate that he served as an Air Policeman. VA audiometric testing in November 2008 reflects that the Veteran currently has sensorineural hearing loss of each ear, which meets the criteria of 38 C.F.R. § 3.385. Pure tone thresholds, in decibels, for each ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 70 70 80 LEFT 30 30 60 65 70 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. In a December 2008 addendum, the VA audiologist opined that the Veteran's hearing loss was less likely as not (less than 50/50 probability) caused by or a result of active service. In support of the opinion, the audiologist opined that, without military entrance and exiting calibrated audiometrics, it is not possible "to prove or disprove" military noise-induced hearing impairment bilaterally (emphasis added). The audiologist also noted non-military sources of hearing impairment and sources of ototoxicity, which along with natural aging, can result in the current hearing levels bilaterally. In January 2012, the Veteran's treating audiologist noted the Veteran's noise exposure on the small arms firing range as an instructor during active service; and that his test results show a moderate-to-severe sensorineural hearing loss of a ski slope configuration. The audiologist also noted that the Veteran's binaural low frequency hearing has a moderate loss, which then progresses rapidly to a severe loss for the high frequency; and that this hearing loss configuration was not uncommon for individuals who have been exposed to damaging noise levels. Moreover, the audiologist suggested that one needed also to remember that in the 1950's, noise defenders were not commonly used. In essence, the Board finds that the treating audiologist implicitly, rather than explicitly, linked the Veteran's current hearing loss disability to incidents of excessive noise exposure in active service. In February 2012, the Veteran's wife testified that back in the 1950's, there was not a lot of television; and that when she spoke to the Veteran with the radio on, it was quite irritating if she was not facing him. She also testified that the Veteran's hearing loss had gotten progressively worse since then. VA audiometric testing in June 2012 again reflects that the Veteran currently has sensorineural hearing loss of each ear. The VA audiologist opined that the Veteran's hearing loss was not at least as likely caused by or a result of an event in active service. In support of the opinion, the VA audiologist reasoned that the separation whispered voice test was normal; and noted that the test was insensitive to high frequency hearing loss, which is typical of noise-induced hearing loss. The VA audiologist also noted that calibrated audiometrics are not available at separation from active service, and association of cause (either military or presbycusis) cannot be established. Subsequently, the VA audiologist further explained that the Veteran's current hearing loss 60 years after active service, and the effects of presbycusis and/or other etiology cannot be determined. Specifically, an association of cause from the Veteran's use of an amplifier attached to his phone at work for 30 years or more, cannot be established. Nor can the Veteran's wife's observations of speaking loudly and becoming irritated establish an association of cause. In essence, the Board finds that VA audiologists cannot resolve this matter as to the etiology of the Veteran's hearing loss without resort to speculation, primarily because of the lack of calibrated audiometrics in active service. The Court has admonished the Board for relying on medical opinions that were unable to establish this required linkage, without resorting to mere speculation, as cause for denying the Veteran's claim. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted; or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. Id. The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained, or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative"). The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Here, most of the Veteran's service treatment records are not available, and VA audiologists indicate that a proper etiology opinion cannot be rendered without calibrated audiometrics conducted during active service. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he was exposed to excessive noise as a small arms instructor during active service. Here, the Veteran is competent to report what occurred in service because his statements regard his first-hand knowledge of a factual matter. He also reported hearing difficulties after active service, which required an amplifier attached to his phone at work. This is further corroborated by his wife's testimony, and by his treating audiologist in January 2012. The Board finds the Veteran's and his wife's lay statements concerning difficulty hearing are not only competent, but also are credible, to show that the Veteran has continued to suffer from progressively worsened difficulty hearing post-service. Their lay statements, therefore, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Accordingly, as the Veteran was exposed to excessive noise exposure in the military and there is lay evidence of continuity of difficulty hearing after his discharge, as well as a current diagnosis of bilateral sensorineural hearing loss, service connection is warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certainly then, when considering their competent and credible lay statements with the medical evidence substantiating the Veteran's claim, and resolving all reasonable doubt in the Veteran's favor, the Board finds that bilateral sensorineural hearing loss had its onset in active service. See 38 C.F.R. § 3.102 (2012). ORDER Service connection for a bilateral hearing loss disability is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs