Citation Nr: 1315745 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-17 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from February 1963 to April 1965. This matter comes to the Board of Veterans' Appeal (Board) on appeal from a December 2008 decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Paul, Minnesota. A May 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, bilateral hearing loss is etiologically related to noise exposure during active military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran filed an original service connection claim for hearing loss in October 2008, at that time indicating that the problem began in 1963. The Veteran indicated that he was currently suffering from hearing loss, acknowledging that he had experienced hearing problems since active duty. He mentioned that during service, he had been exposed to weapons fire, without hearing protection. The Veteran served on active duty from February 1963 to April 1965. His military occupational specialty was light weapons infantryman. The service treatment records include a January 1963 enlistment examination report which indicated that clinical evaluation of the ears was normal and that hearing was 15/15 on whispered voice testing; it does not appear that an audiological evaluation was conducted/recorded. During service, in February 1963, the Veteran underwent audiometric testing, which revealed the following pure tone threshold values in the right ear: 0 dB (500 Hz),-5 dB (1000 Hz), -10 dB (2000 Hz), 0 dB (3000Hz), and 30 dB (4000 Hz); and in the left ear: 10 dB (500 Hz), -5 dB (1000 Hz), 5 dB (2000 Hz), 0 dB (3000 Hz), and 30 dB (4000 Hz). It is noted that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Such conversion yields the following pure tone threshold values in the right ear: 15 dB (500 Hz), 5 dB (1000 Hz), 0 dB (2000 Hz), 10 dB (3000 Hz), and 35 dB (4000 Hz); and in the left ear: 25 dB (500 Hz), 5 dB (1000 Hz), 0 dB (2000 Hz), 10 dB (3000 Hz), and 35 dB (4000 Hz). In June 1963, the Veteran complained of tinnitus and discomfort in his left ear of 48 hours duration following the firing of "M.I. and BAR." At such time, he underwent audiometric testing, which revealed the following pure tone threshold values in the right ear: 30 dB (500 Hz), 15 dB (1000 Hz), 0 dB (2000 Hz), 15 dB (3000Hz), and 30 dB (4000 Hz); and in the left ear: 30 dB (500 Hz), 25 dB (1000 Hz), 10 dB (2000 Hz), 25 dB (3000 Hz), and 60 dB (4000 Hz). Again, service department audiometric readings must be converted from ASA units to ISO units. Such convert to the following pure tone threshold values in the right ear: 45 dB (500 Hz), 25 dB (1000 Hz), 10 dB (2000 Hz), 25 dB (3000 Hz), and 35 dB (4000 Hz); and in the left ear: 45 dB (500 Hz), 35 dB (1000 Hz), 20 dB (2000 Hz), 35 dB (3000 Hz), and 35 dB (4000 Hz). Ear plugs were prescribed. In July 1963, the Veteran again underwent audiometric testing, which revealed the following pure tone threshold values in the right ear: 0 dB (500 Hz), -10 dB (1000 Hz), 10 dB (2000 Hz), 20 dB (3000Hz), and 35 dB (4000 Hz); and in the left ear: 5 dB (500 Hz), 20 dB (1000 Hz), 30 dB (2000 Hz), 50 dB (3000 Hz), and 70 dB (4000 Hz). Again, service department audiometric readings must be converted from ASA units to ISO units. Such convert to the following pure tone threshold values in the right ear: 15 dB (500 Hz), 0 dB (1000 Hz), 20 dB (2000 Hz), 40 dB (3000 Hz), and 40 dB (4000 Hz); and in the left ear: 20 dB (500 Hz), 30 dB (1000 Hz), 40 dB (2000 Hz), 60 dB (3000 Hz), and 75 dB (4000 Hz). At the time of the Veteran's April 1965 discharge, his hearing was 15/15 on the whispered and spoken voice tests. Additionally, audiometric finds reflect the following pure tone threshold values in the right ear: 0 dB (500 Hz), 0 dB (1000 Hz), 0 dB (2000 Hz), and 0 dB (4000 Hz); and in the left ear: 0 dB (500 Hz), 0 dB (1000 Hz), 0 dB (2000 Hz), and 0 dB (4000 Hz). Testing was not done at 3000 Hz. Again, service department audiometric readings must be converted from ASA units to ISO units. Such convert to the following pure tone threshold values in the right ear: 15 dB (500 Hz), 10 dB (1000 Hz), 10 dB (2000 Hz), and 5 dB (4000 Hz); and in the left ear: 15 dB (500 Hz), 10 dB (1000 Hz), 10 dB (2000 Hz), and 5 dB (4000 Hz). Testing was not done at 3000 Hz. On file is a private audiological evaluation report of April 2006 which revealed high frequency sensorineural hearing loss of the right ear and sensorineural hearing loss of the left ear, meeting the threshold requirements for a hearing disability for VA purposes as defined under 38 C.F.R. § 3.385. A VA examination was conducted in November 2008 also revealing bilateral hearing loss meeting the threshold requirements for a hearing disability for VA purposes as defined under 38 C.F.R. § 3.385. At the time, the examiner reviewed the claims file and noted that the audiometric thresholds were normal on service discharge. He also noted that the Veteran had military noise exposure from weapons (105 recoiless, browning automatic) during training and helicopters. It was also noted that the Veteran had occupational noise exposure as a result of working in construction for 38 years. The examiner determined that the Veteran's bilateral hearing loss was most consistent with sensorineural impairment. The examiner indicated that, given no audiometric data at discharge, the Veteran's current hearing loss is, more likely than not, not related to noise exposure during military service. Specifically, he opined that the Veteran's hearing loss was not likely related to noise during military service because his hearing thresholds at the time of separation were all 0dB, which was well within the range of normal hearing. In a December 2008 rating action, service connection was established for tinnitus, and denied for bilateral hearing loss. A second opinion was requested in this case based on arguments made by the Veteran in January 2009, to the effect that some indication of hearing loss was documented in the STRs, even if not on separation. In a March 2009 addendum VA opinion offered by a different audiologist, it was noted that the Veteran's discharge audiogram indicated normal hearing by VA standards. As such, he opined that, given normal hearing on discharge, the Veteran's hearing impairment is less likely as not caused by or a result of military noise impairment. The case initially came before the Board in April 2013, at which time a medical expert opinion from the Veterans Health Administration (VHA) was sought. In the April 2013 opinion request, the Board observed that no VA examiner had addressed the Veteran's in-service hearing impairment noted in June 1963 and July 1963, and that moreover, no examiner had acknowledge that the in-service audiometric readings had not been converted from ASA to ISO. Accordingly, it was requested that upon a review of the claims file, to specifically include the aforementioned service treatment records, VA opinions, and the Veteran's lay statements, the following opinions be offered: (A) Is it at least as likely as not that the Veteran's bilateral hearing loss had its onset in, or is otherwise related to, his military service? Why or why not? In rendering such opinion, the examiner was specifically requested to discuss the significance, if any, of the June 1963 and July 1963 audiometric readings; and (B) Did bilateral hearing loss manifest within one year of the Veteran's service discharge in April 1965? Why or why not? If so, what were the manifestations of such disability? In late April 2013, the expert, a VA doctor of audiology, responded by initially noting that the entrance examination whisper test lacked sensitivity to detect high frequency hearing loss and further explaining that accordingly, the hearing loss evident in the February 1963 examination could have been present upon enlistment testing, but been undetected due to inadequate testing. It was further observed that when comparing audiological test results of February and June 1963, there was a demonstrated threshold shift below 3,000 hertz, in both ears, which was described as possibly either temporary or permanent. The expert explained that immediate testing following noise exposure would reflect a temporary threshold shift, demonstrating a greater hearing loss than that permanently present and that therefore, the July 1963 examination findings might be a more accurate representation of the Veteran's hearing loss attributable to noise exposure. In summary, the expert stated that hearing loss may have been present upon the Veteran's entry into service, but worsened due to military noise exposure. It was opined that in the alternative, if VA deemed the Veteran's hearing to be normal upon enlistment, then the July 1963 examination most accurately reflects the Veteran's hearing loss, which was determined by the expert to be at least as likely as not attributable to military noise exposure. The expert further observed that the absence of hearing loss upon discharge was interpreted cautiously, due to the presence of both a whisper and pure tone threshold examinations. It was noted that the lack of any fluctuation of hearing thresholds was atypical of most hearing screenings and that the accuracy of the exam was questioned in light of the 3 prior tests. The expert ultimately opined that it was as likely as not that high frequency hearing loss was present at the Veteran's separation from service, and was not a manifestation following service. As an initial matter, the Board notes that the Veteran has a current bilateral hearing loss disability for VA purposes. Specifically, upon examinations of 2006 (private) and 2008 (VA) audiological evaluations revealed that evidence of bilateral hearing disability as defined under 38 C.F.R. § 3.385, was shown. Furthermore, the Board notes that the Veteran has acknowledged in-service noise exposure. In this regard, the Veteran's accounts of sustaining acoustic trauma during service are found to be both competent and credible. Further, the Board notes that his lay account to this effect provided a premise upon which to grant service connection for tinnitus in a December 2008 rating action. Likewise, as indicated previously, the Veteran's service treatment records contain audiograms demonstrating decibel losses at various frequencies. Therefore, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his military service, to include his in-service noise exposure. In both 2008 and 2009, VA examiners were unable to link currently manifested hearing loss to the Veteran's period of service, to include by virtue of acoustic trauma sustained therein. As a result, an expert medical opinion was sought in this case, which was provided by a VA doctor of audiology in April 2013. The expert, having reviewed the Veteran's lay and clinical service and post service history of acoustic trauma and audiological results, ultimately opined that it was as likely as not that high frequency hearing loss was present at the Veteran's separation from service, and was not a manifestation following service. In this regard, it was explained that the July 1963 examination most accurately reflected the Veteran's hearing loss, which was determined by the expert to be at least as likely as not attributable to military noise exposure. The expert further noted that the absence of hearing loss upon discharge (April 1965 examination) was interpreted cautiously, due to the presence of both a whisper and pure tone threshold examinations. It was noted that the lack of any fluctuation of hearing thresholds was atypical of most hearing screenings and that the accuracy of the exam was questioned in light of the 3 prior tests of January, June and July 1963. The Board finds the April 2013 expert VA opinion to be the most probative and persuasive evidence on file, given the thoroughness of the opinion and the fact that it discussed and accounted for the discrepancies shown by the service audiological test results shown between enlistment and separation; factors not addressed or explained in the VA opinions of 2008 and 2009. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Given the lay and clinical evidence and the medical opinions already provided for the file, the Board concludes that the evidence is at least in equipoise regarding the matter of service incurrence of bilateral hearing loss. Accordingly, further evidentiary development is not necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose.) With resolution of all reasonable doubt in the Veteran's favor, the service connection claim for bilateral hearing loss is granted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied. See 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 49. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs