Citation Nr: 1314865 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 12-06 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from November 1951 to August 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating action of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. (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).) The August 2010 rating decision denied the Veteran's claims for service connection for hearing loss and tinnitus, and in his September 2010 notice of disagreement (NOD), the Veteran appealed the denial of service connection for both claims. Before the matter was certified to the Board, by a February 2013 rating action, a Decision Review Officer (DRO) granted service connection for tinnitus, and evaluated it as 10 percent disabling, effective March 31, 2010. The Board finds that the grant of service connection for this disability constitutes a full award of the benefit sought on appeal with respect to the tinnitus issue. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). FINDING OF FACT The Veteran's bilateral sensorineural hearing loss is likely related to his military service. CONCLUSION OF LAW The Veteran has bilateral sensorineural hearing loss that is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." See Walker. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2012). 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Here, the Veteran contends that he has bilateral hearing loss due to exposure to acoustic trauma while assigned to the 31st Infantry Regiment in the U.S. military. According to the Veteran, his hearing loss was the result of an injury sustained in service--specifically, exposure to acoustic trauma from the firing of weapons in combat, and the detonation of explosive devices. The Veteran further asserts that his hearing loss has continued to worsen since his separation from service. See June 2010 Statement of Veteran. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an award of service connection for bilateral sensorineural hearing loss. The Board notes that the Veteran was informed in the April 2010 notification letter that due to a fire at the National Archives and Records Administration on July 12, 1973, his military records may have been destroyed. The RO attempted to locate the Veteran's service treatment records through alternative means but was unsuccessful, and a Formal Finding on the Unavailability of Service Treatment Records for the Veteran's period of service in the Army was issued in June 2010 which detailed the attempts made to obtain additional information from the Veteran. It was ultimately determined that the Veteran's service treatment records were unavailable for review. At the August 2010 VA examination, the Veteran described his in-service experiences and attributed his current hearing loss to his exposure to acoustic trauma while serving as an infantryman and participating in combat duty while stationed in Korea. According to the Veteran, he was stationed in Korea for ten months, at which time, he was continually exposed to extreme noises and sounds produced by the detonation of explosives and the firing of mortars, artillery weapons, and machine guns twenty-four hours a day seven days a week. The Veteran further maintains that hearing protection was not provided during this time. In an April 2010 statement, the Veteran's wife, M.T., described the Veteran's physical condition after his separation from service and noted that his hearing acuity at the time of his separation was worse than when he first entered service. According to M.T., the Veteran's hearing has continued to deteriorate throughout the years, and he can no longer enter family discussions or hear the minister at church. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); & Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.") In the present appeal, the Veteran's DD form 214 indicates that he had ten months of foreign service and his most significant duty assignment in service was with the 31st Infantry Regiment. The DD form 214 further reflects that he received a Korean Service Medal w/2 Bronze Service Stars, as well as a Combat Infantryman Badge (CIB). In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Here, based on the Veteran's military duty assignment as well as his receipt of the CIB, the Board concedes that the Veteran was exposed to acoustic trauma in service. Pertinent case law provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). The audiological examinations on file establish that the Veteran has a current hearing disability that satisfies the criteria of 38 C.F.R. § 3.385. In this regard, the Veteran's post-service treatment records reflect that he first presented at the Mount Vernon VA outpatient clinic in April 2010 to establish VA care. He was thereafter referred for an audiological consultation, at which time he complained of difficulty hearing and described a history of military and post-service occupational noise exposure. The VA audiologist conducted an audiological evaluation of the Veteran, the results of which showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 70 70 70 70 LEFT 30 40 70 75 70 Based on the audiometric findings, the VA audiologist diagnosed the Veteran with bilateral sensorineural hearing loss of combined types. These findings meet the requirements of 38 C.F.R. § 3.385 (2012). Thus, the remaining question pertaining to service connection is whether the Veteran's current hearing loss is related to his military noise exposure. As previously noted , during the August 2010 VA examination, the Veteran described his military history and reported a history of combat noise exposure while stationed in Korea. According to the Veteran, he participated in "direct combat" situations while serving in Korea, and was constantly exposed to noises and sounds emitted from the detonation of bombs, and the firing of mortars, artillery weapons and machine guns twenty-four hours a day, seven days a week. The Veteran further reported that no hearing protection was provided during this time. In reviewing the Veteran's post-service history, the examiner noted that the Veteran also had occupational noise exposure while working at a factory for nearly forty years after service. While the Veteran described the environment as loud due to the noises caused by the equipment, he stated that he always wore hearing protection. On the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be: HERTZ 500 1000 2000 3000 4000 RIGHT 45 70 70 75 75 LEFT 30 45 70 70 70 Speech audiometry revealed speech recognition ability of 62 percent in the right ear and 72 percent in the left ear. Based on her review of the records and audiological evaluation of the Veteran, the examiner diagnosed the Veteran with moderate to severe sensorineural hearing loss in the right ear, and mild to severe sensorineural hearing loss in the left ear. With respect to whether the Veteran's hearing impairment is related to his military service, the examiner determined that this issue could not be resolved without resorting to mere speculation. According to the examiner, the evidence of record was absent any documentation of an in-service illness, injury, hospitalization, treatment or examination pertaining to the Veteran's ears or his hearing. The examiner also noted that there was no documentation available with regard to the Veteran's audiometric findings upon his entrance into, and discharge from, service. The examiner further referenced a study issued through the Institute of Medicine (IOM) Committee on Noise-induced Hearing Loss and Tinnitus Associated with Military Service, and provided the name, author and citation of the book this study was subsequently published in. The examiner went on to quote some of the findings produced through this study, one of which reportedly indicates that "in the absence of audiograms obtained at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service." In Jones v. Shinseki, 23 Vet. App. 382 (2010), the United States Court of Appeals for Veterans Claims (Court) noted that an examiner's conclusion that an etiology opinion is not possible without resorting to speculation is a medical conclusion that must be "based on sufficient facts or data," and the opinion "must support its conclusion with an analysis that the Board can consider and weigh" to be adequate. Here, the examiner provided reasons why the absence of medical evidence inhibited her from providing an opinion, but she did not refer to the Veteran's history, which includes statements of continuity of symptoms since service. She did not say why the Veteran's statements regarding continuity of symptoms were not sufficient information on which to base her opinion. Her failure to consider all the evidence, both medical and lay evidence, is what makes her opinion insufficient. The Veteran has described a history of exposure to loud sounds in service and has stated that he has experienced a decline in his hearing acuity since his period of service. As previously discussed above, the Veteran is competent to report his experiences and symptoms in service. The Board also finds the Veteran's statements with respect to his continuity of symptomatology to be credible. Accordingly, after reviewing the evidence of record and resolving reasonable doubt in his favor, the Board finds that the Veteran's current hearing loss cannot be reasonably disassociated from his in-service exposure to loud noises. In arriving at this decision, the Board relies on the Veteran's noise exposure as well as his credible post-service assertions that he has continued to experience hearing loss since his discharge from service. While the Board recognizes that the evidence of record is negative for any treatment for, or diagnosis of hearing loss until many years after service, the Veteran and his wife have both asserted that there was a noticeable difference in his hearing after his separation from service. See April 2010 Statement of M.T.; June 2010 Statement of Veteran. In addition, while the Veteran has admitted to a history of post-service occupational noise exposure, the evidence of record reflects that his initial exposure to extreme noises occurred during his military service. Furthermore, at the August 2010 VA examination, the Veteran indicated that he always wore hearing protection when performing his post-service occupational duties. The Board also concludes that the August 2010 VA medical report is of limited probative value to the extent that no etiological opinion was provided as to the relationship between the Veteran's hearing loss and service. In any event, the Board notes that, while the August 2010 examiner did not provide an opinion relating the Veteran's hearing loss to service, she has not stated in definitive terms that such disability is not related to his time in service. Thus, the Board finds that the VA examiner's opinion has little probative value, and, when weighed against the Veteran's reported onset in service and continuity of symptomatology since service, the Board finds the evidence is at least in equipoise that the Veteran's hearing loss is related to his in-service noise exposure. Of particular significance to the Board in this matter are the Veteran's in-service experiences and his competent complaints of continued hearing problems since service. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran currently has bilateral sensorineural hearing loss that was incurred during his active military service as a result of exposure to loud noises. Accordingly, service connection is warranted. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for bilateral sensorineural hearing loss is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs