Citation Nr: 1315436	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  10-06 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to December 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

The Veteran appeared and provided testimony before the Board in November 2012.  A transcript of the hearing has been associated with the claims file.  The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence.

The issue of whether new and material evidence has been received to reopen a claim for service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.


FINDING OF FACT

The Veteran's hearing loss is likely related to his noise exposure during service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110 (West 2002).  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).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, 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.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system.  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker, 708 F.3d at 1340 (noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)).  

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1337), or in the presumptive period so as to permit a finding of service connection, 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).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which [service connected] disability compensation is sought."  Walker, 708 F.3d at 1336.  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "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.

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 [service as it] 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.; 38 C.F.R. § 3.303(b).

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired 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, 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service.  See Hensley, 5 Vet. App. at 159.  When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service.  Id. at 160.

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 that 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.

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).

The Veteran seeks service connection for bilateral hearing loss.  Objective testing shows he has hearing loss of the severity to qualify as a disability for VA purposes in both ears.  38 C.F.R. § 3.385.

During his period of service, his military specialty was Hospital Corpsman and he served aboard the USS Sanctuary.  He said his duties included unloading wounded soldiers from medical evacuation helicopters.  He performed his duties for more than a year without hearing protection.  He claims that his constant exposure to helicopter engines damaged his hearing.

Service treatment records include entrance and separation examinations, which show normal audiologic testing at entrance and normal whisper testing at separation.  Audiologic testing was not conducted at separation from service. 

In June 2008, the Veteran sought treatment with private physician Dr. L. P. D., MD, due to sudden hearing loss in the left ear.  The Veteran said he was in front of a band dancing when he suddenly felt he was losing hearing in his left ear.  The examiner noted cerumen impaction, which was removed, but that the Veteran continued to have significant hearing loss in the left ear.  Hearing in the right ear was normal except for mild high frequency loss.  Notably, the Veteran lost hearing in his left ear six months prior but his hearing returned within a day.  The provider said he had classic sudden hearing loss in the left ear.  In July 2008, Dr. L. P. D. said the Veteran's hearing in the left ear had improved slightly but that the exact etiology of the loss remained a mystery with viral infection versus vascular causes a possibility.

The Veteran had a VA examination in December 2008.  He told the examiner that he had had progressive hearing loss in both ears over the years, with the left ear being the poorer of the two ears.  During service, he was exposed to noise from helicopter engines, ship engines, ammunition explosions, and small arms fire.  After service, he worked as a car salesperson and had no history of occupational noise exposure.  He reported having had no recreational noise exposure.  Objective testing showed a hearing loss disability for VA purposes in each ear.  38 C.F.R. § 3.385.  The examiner opined that it is at least as likely as not that the Veteran's bilateral sensorineural hearing loss is related to his military service since there is no separation audiometric evaluation to rule out the possibility of frequency specific hearing loss.

In a March 2009 addendum, the VA examiner indicated review of the Veteran's claims file, including the private physician records from 2008.  The examiner noted that the Veteran had sudden onset of hearing loss in the left ear in June 2008 while dancing in front of a live band.  The examiner pointed out that the private provider found that the etiology of the left ear hearing loss was a mystery, with viral infection versus vascular causes a possibility.  The examiner also noted that right ear hearing loss could be related to the aging process.  Based on the review of the claims file, the examiner opined that it is less likely than not that the Veteran's right ear hearing loss is related to military noise exposure.  The examiner also opined that the left ear hearing loss was not the result of military related noise exposure.

In a May 2009 letter from Dr. L. P. D., the provider said the Veteran reported his history of noise exposure while in the military, to include helicopter engine noise.  Dr. L.P.D. opined that there is no question that the in-service noise exposure factored into the hearing loss in the right ear and may be a factor in the highest frequencies in the left ear.

During his hearing before the Board, the Veteran testified that he experienced hearing loss on his first day aboard the hospital ship in Vietnam.  He reported having had intermittent hearing loss and tinnitus during and subsequent to service.  He said his duties during service included unloading the wounded from helicopters and taking them to the emergency room.  The helicopters would continue to run while he unloaded passengers; however, he did not wear hearing protection.  He also testified that his quarters were next to a sump pump that ran continuously.  After service, he worked as a car dealer and was not exposed to noise.  He denied being exposed to recreational noise except for the one instance in 2008.

The Board has reviewed the physical and electronic or "Virtual VA" claims files and finds that the Veteran was likely exposed to noise during service even though his whisper tests were normal at separation.  The Veteran provided a history of his post-service employment, which shows a lack of noise exposure, which the Board finds credible.  Further, the Veteran provided a private opinion that indicates a relationship between hearing loss and service.

Weighing all of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is a result of or related to his active service.  Accordingly, entitlement to service connection for bilateral hearing loss must be granted.  Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs