Citation Nr: 1316319 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-11 415A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral 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 served on active military duty from May 1966 to May 1969. The Veteran served in Vietnam as a combat engineer and is in receipt of a Vietnam Campaign Medal with 60 device and a Vietnam Service Medal with two Bronze Stars. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs. This decision denied the Veteran's claims for service connection for hearing loss and tinnitus, and in his October 2008 notice of disagreement (NOD), the Veteran appealed the denial of service connection for both claims. In August 2012, the Board remanded the Veteran's claims for further evidentiary development. Specifically, the Board requested that the RO schedule the Veteran for another VA examination to determine the nature, extent, and etiology of his bilateral hearing loss and tinnitus. This examination was completed in October 2012, and an addendum opinion was issued in November 2012. Copies of the VA examination report and addendum opinion have been associated with the Veteran's claims file. The Appeals Management Center (AMC) subsequently readjudicated the claim in the December 2012 Supplemental Statement of the case (SSOC). Thus, the agency of original jurisdiction (AOJ) has complied with all of the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Before the matter was transferred to the Board, by a December 2012 rating action, a Decision Review Officer (DRO) granted service connection for tinnitus, and evaluated it as 10 percent disabling, effective March 15, 2007. 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 hearing loss is causally or etiologically related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was incurred in active 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 FINDINGS AND CONCLUSION I. Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with the issue on appeal, no further discussion of the VCAA is required with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis 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 serving as a combat engineer in Vietnam. 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, the detonation of explosive devices, and sounds produced while performing various demolition tasks. See March 2007 claim and April 2009 Statement. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. Turning to the Veteran's service treatment records, at the February 1966 enlistment examination, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied having a medical history of ear trouble or hearing loss. On the authorized audiological examination, the examiner found his pure tone thresholds, in decibels, to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5(10) -10(0) -10(0) XXXX -5(0) LEFT 5(20) -5(5) -5(5) XXXX -5(0) [The Board observes 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. As these evaluations were conducted prior to October 1967, the Board has converted the ASA units (first threshold listed at each frequency) to ISO units (second threshold listed at each frequency) as shown above.] The remainder of the Veteran's service treatment records are silent for any complaints, signs, or notations of hearing problems and at the March 1969 separation examination, the clinical evaluation of the ears and drums was shown to be normal, and the Veteran denied having a medical history of ear, nose or throat trouble and hearing loss. While the Veteran also underwent an audiological evaluation at separation, the audiometric findings are unclear and difficult to decipher. However, he did have a hearing loss profile of 'H1' at the time of this examination. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In his March 2007 claim, the Veteran stated that he was exposed to loud noises on a regular basis while serving as a combat engineer in Vietnam. He further contends that he was not provided proper ear protection in service, that he has experienced difficulty hearing since service and that his hearing problems have steadily worsened throughout the years. See March 2007 claim; April 2009 Statement of Veteran; and VA treatment records dated in March 2007 and April 2010. The Veteran also described an incident in Vietnam wherein enemy forces hit an ammunition dump at the camp site he was stationed at with a mortar round, knocking him to the ground and causing him to experience difficulty hearing, as well as a ringing noise in his ears. According to the Veteran, he was unable to hear anything until the next morning as a result of this explosion. See May 2007 Statement of Veteran. 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.") The Veteran's DD 214 reflects his military occupational specialty was that of Combat Engineer, and his personnel records show that he served in the Republic of Vietnam from October 1966 to October 1967. Also, copies of official records issued by the Office of Information at the Headquarters of the United States Military Assistance Command center corroborate the Veteran's assertions that an ammunition dump near his camp site was attacked with mortar fire and demolitions. Furthermore, upon initiating a request to schedule the Veteran for a VA examination, the RO conceded the Veteran's exposure to acoustic trauma. See February 2008 Compensation and Pension Exam Inquiry Form. While the Board agrees with this determination, the questions remain whether the Veteran has a current hearing disability for VA purposes, and if so, whether the hearing disability is related to his conceded noise exposure in service. Recent audiological examinations establish that the Veteran has a current hearing disability that satisfies the criteria of 38 C.F.R. § 3.385. Most recently, and pursuant to the August 2012 remand, the Veteran was afforded a VA audiological evaluation in October 2012, and on the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 80 85 LEFT 35 40 50 75 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 76 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss in both ears. These findings-as well as subsequent audiological evaluations-meet the requirements of 38 C.F.R. § 3.385 (2012). The Veteran was afforded a VA audiological examination in March 2008. The VA audiologist at the time determined that the Veteran misrepresented his hearing and failed to cooperate in the testing, and that accordingly, the responses provided were not reliable. Moreover, the VA audiologist did not provide a record of the hearing test results. According to the VA audiologist, the Veteran's hearing loss was not related to service because the Veteran had normal hearing upon service separation and current research did not support the concept of delayed onset of hearing loss. The Board did not find this opinion to be adequate as the VA audiologist erroneously found that hearing loss can never be attributed to service where there is normal hearing on service discharge, nor did he address the Veteran's lay statements of continuing symptoms of hearing loss since service. The Veteran later submitted additional evidence from his private audiologist, dated in March 2009 and date stamped as having been received in April 2009. The audiological report was issued by C.R., a Hearing Instrument Specialist, and contains the Veteran's audiogram results in graph form. The results of this private audiometric testing showed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 80 85 LEFT 55 50 65 75 80 The private audiogram results were provided in graph form, and the Board has provided the numeric equivalents above. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (noting that, because interpreting results from an audiometric graph involves fact finding, the Court is precluded from engaging in such fact finding in the first instance, and remanding in part because the Board did not discuss the results of the private audiometric testing). While this audiological evaluation establishes that the Veteran has a current hearing disability that satisfies the criteria of 38 C.F.R. § 3.385, the audiologist did not provide a medical opinion as to whether the Veteran's hearing loss is related to service. The Veteran was afforded a more recent VA examination in October 2012, at which time he provided his military history, and described his exposure to acoustic trauma in service. The Veteran also described the nature of his hearing loss and reported to experience difficulty hearing during conversations. According to the Veteran, he worked as an iron worker for thirty years following service. Based on his evaluation of the Veteran, the examiner diagnosed him with bilateral sensorineural hearing loss. Without the benefit of the Veteran's claims file to review, the VA audiologist determined that he could not provide a medical opinion regarding the etiology of the hearing loss without resorting to speculation. However, after having the opportunity to review the Veteran's claims file, in a November 2012 addendum opinion, the same VA audiologist determined that the Veteran's bilateral hearing loss is less likely as not caused by or a result of his in-service noise exposure. According to the audiologist, the Veteran's audiometric evaluation at the time of his separation examination indicates that his hearing was within normal limits, and when compared to his audiological results at enlistment, "there is not a significant change in threshold." The VA audiologist further noted that current research does not accept the concept of delayed onset of hearing loss due to noise exposure, and concluded that there was no way to know what caused the Veteran's current hearing loss. According to the VA audiologist, such hearing loss could be due to noise exposure post-service, an illness or viral infection, the aging process, or other factors. The Veteran has described a history of exposure to loud sounds in service and has stated that he has experienced difficulty hearing since his separation from 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. In considering the evidence of record, the Board finds that the Veteran's current hearing loss cannot be reasonably disassociated from his conceded in-service exposure to loud noises. In arriving at this determination, the Board relies on the Veteran's conceded combat noise exposure and his credible post-service assertions that he has continued to experience symptoms of hearing loss since his discharge from service. Moreover, in the December 2012 rating action, the RO conceded that the Veteran was exposed to acoustic trauma and granted the Veteran's request for service connection for tinnitus based on the same claim of noise exposure. The fact that the Veteran has been granted compensation for a service-related hearing problem adds to the credibility of his contention that his hearing loss is related to service because 'an associated hearing loss is usually present' with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. The Board acknowledges the November 2012 medical opinion which does not relate the Veteran's hearing loss to service. In rendering this negative opinion, the VA audiologist relied on the Veteran's normal audiological results at the time of discharge. It should be noted that the Board could not decipher the Veteran's audiometric findings at the time of his discharge and cannot state whether they were in fact clear for a significant change in threshold when compared to the audiological findings at enlistment. Regardless of the Board's interpretation of the March 1969 audiometric findings, by noting that the Veteran was shown to have normal hearing on his separation examination report, the VA audiologists may have been "implying" that had there been noise-induced hearing loss in service, it would have been detected by the evaluation at separation. Nevertheless, the VA audiologist did not actually state this clearly, and the Board concludes that "inferring" that this is what he meant from what he did say would be tantamount to the Board rendering its own unsubstantiated medical opinion, and the Board is precluded from doing so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In addition, the VA audiologist does not appear to have given much weight to the Veteran's account of his in-service experiences, his exposure to loud noise while carrying out his military duties, and his assertions of continuing hearing problems since service. While the VA audiologist attributed the Veteran's hearing loss to a litany of other potential factors, to include noise exposure post-service, the evidence of record reflects that his initial exposure to loud noises occurred during his military service. Furthermore, the VA audiologist failed to take into consideration the Veteran's assertion that he was not provided with any form of hearing protection while fulfilling his military duties. Thus, the Board finds that the November 2012 VA medical 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 that the evidence is at least in equipoise that the Veteran's hearing loss is related to his conceded in-service noise exposure. Of particular significance to the Board in this matter are the Veteran's conceded in-service acoustic trauma and his competent complaints of continuing 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. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs