Citation Nr: 1315016 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-24 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral hearing loss disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In this rating decision, the RO denied reopening the issue of entitlement to service connection for a bilateral hearing loss disorder. The Veteran initiated an appeal of this determination. In December 2010, the Veteran testified before the undersigned Veterans Law Judge, seated at the RO. A written transcript of this hearing has been added to the claims file. In a May 2011 decision and remand, the Board reopened the Veteran's service connection claim for a bilateral hearing loss disorder, and remanded this issue to the RO for additional development. The RO was ordered to obtain additional VA treatment records, and afford the Veteran a VA medical examination and opinion. Additional VA treatment records were associated with the Veteran's physical claims file and his electronic file within Virtual VA, and he was afforded a June 2011 VA examination and opinion. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Also remanded by the Board in May 2011 was the issue of service connection for tinnitus. In a subsequent May 2012 rating decision, the RO granted the Veteran service connection for tinnitus. Because the appellant was awarded service connection for this disability, it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes. 3. The Veteran's current bilateral hearing loss is etiologically related to exposure to acoustic trauma in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Service Connection for Bilateral Hearing Loss The Veteran seeks service connection for a bilateral hearing loss disorder. He asserts he has bilateral hearing loss as a result of his noise exposure during service, during which he served as a tank crewman. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the recent case of Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Organic diseases of the nervous system are recognized as chronic disorder by 38 C.F.R. § 3.309(a). Additionally, sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). M21-1MR III.iv.4.B.12.a. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Turning to the facts of the present case, the Veteran asserts that his service as a member of a tank crew resulted in his exposure to heavy gun fire and other acoustic trauma. His DD-214 confirms he served in an armor unit. Thus, the Board finds credible the Veteran's assertions that he was exposed to such acoustic trauma as tank weapons fire during service. Next, addressing the question of current disability, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. A June 2011 VA audiological examination established a diagnosis of a sensorineural hearing loss disability bilaterally. On VA audiological examination in June 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 60 75 LEFT 20 15 50 75 75 The average pure tone threshold was 44dBs in the right ear and 54dBs in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 82 percent in the left ear using the Maryland CNC word list. As the Veteran has a current bilateral hearing loss disability recognized by VA, the Board must next consider the etiology of such a disorder. On the question of in-service injury or disease, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) to both ears in service, based on his service as a tank crewman attached to an armor unit. In recognition of such exposure, he has already been awarded service connection for tinnitus. As noted above, his service as a member of a tank crew in an armor unit has been confirmed. He has stated he was exposed to loud noises, to include rifles, tank cannons, and other heavy weapons, in service. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Additionally, Veterans Benefits Administration (VBA) Fast Letter 10-35 (September 2, 2010), regarding service connection claims for hearing loss, lists "armor crewman" (formerly, Military Occupational Specialty 11E, now 19K) as having a "highly probable" probability of exposure to hazardous noise. Because the Board has found that the Veteran's assertions are verified by his available service records, the Board accepts as credible his assertion of exposure to acoustic trauma in service. The Veteran was afforded audiometric testing both at service entrance in October 1968, and in December 1970, at service separation. At service entrance, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 5 N/A 5 LEFT 15 15 0 N/A 10 In December 1970, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 5** 5 LEFT 20 15 15 N/A 15 Although the Veteran was not specifically diagnosed with hearing loss of either ear in active service, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board further finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss disorder is related to exposure to acoustic trauma in service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. The evidence of record demonstrates acoustic trauma in service, and the Veteran has reported both some loss of hearing acuity and tinnitus at the time of service separation. He is both competent and credible to testify regarding such observable symptomatology. In support of his claim, the Veteran submitted a February 2008 statement from D.G., NBC-HIS. D.G. stated he had reviewed the Veteran's medical history and confirmed via audiometric testing current diagnoses of a bilateral hearing loss disorder and tinnitus. D.G. also stated that the Veteran's hearing loss was likely related to his acoustic trauma during service. The Veteran also testified at a December 2010 personal hearing that he first noticed tinnitus and a decrease in his hearing acuity following service, and sought treatment from a private physician. He was told by his private physician within a year of service separation that he had hearing loss. The Veteran also stated he was not afforded audiometric testing at service separation. The Board notes that, on two separate VA audiological examinations conducted by different examiners in May 2008 and June 2011, two VA examiner opined that the Veteran's current hearing loss was not likely related to his exposure to noise in service. These examiners reasoned that hearing loss had not been shown during service or at service separation, and the in-service audiometric testing did not indicate a threshold shift in the Veteran's hearing acuity at that time. The May 2008 VA examiner also noted that the Veteran worked as a firefighter for over 25 years following service, and this could have contributed to his current hearing loss disorder. The Veteran reported using hearing protection while working as a firefighter. Most recently, a July 2012 opinion letter was received from a VA physician, C.D.B., M.D. Dr. B. stated it was more likely than not that the Veteran's in-service acoustic trauma, sustained as a member of a tank crew, resulted in his current diagnosis of a bilateral hearing loss disorder. Dr. B. also noted that according to the Veteran's account, he was not afforded audiometric testing at service separation. The Board notes that while the Veteran was in fact afforded a service separation physical examination, the report of which is associated with his service treatment records, this examination is dated December 1970. The Veteran did not actually separate from active duty service until May 1971; therefore, he may have considered the December 1970 examination to be a periodic medical examination, and not his service separation examination. The Board finds that the May 2008 and June 2011 VA opinions in regard to the etiology of the Veteran's hearing loss to be of limited probative value. Both VA examiners concluded the Veteran's hearing acuity was within normal limits at service separation, and the June 2011 examiner found no evidence of a significant threshold shift during service. The Board notes, however, that the Veteran's average pure tone threshold did decline for both ears during his service period, according to the October 1968 and December 1970 examination reports. This finding confirms the Veteran's own reports of a perceived decrease in hearing acuity immediately following service, as well as the February 2008 and July 2012 positive medical opinions in favor of his claim. The Board finds the positive medical opinions, along with the Veteran's assertions of continuity of hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma and a current diagnosis, are all sufficient to place in equipoise the question of whether the current bilateral hearing loss disorder is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a bilateral hearing loss disorder is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs