Citation Nr: 1316519 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-11 317 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for claimed bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to April 1946, from October 1961 to August 1962, and from April 1973 to March 1976. He had additional service in the Army Air Corps, Air National Guard, and the Army Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the RO. In December 2012, the Board remanded the claim to the RO for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In a March 2013 rating decision, the RO granted service connection for cold injury residuals of the upper extremities, lower extremities, bilateral ears, and nose, and assigned a 40 percent evaluation effective on June 5, 2007, and a 90 percent evaluation effective on February 15, 2013. The action constituted a full grant of the benefits sought, and the claim of service connection for claimed frostbite is no longer pending appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In October 2012, the Veteran's representative, on behalf of the Veteran, raised a claim of service connection for tinnitus. The Board referred this claim to the RO for appropriate action in December 2012; however, it does not appear that any action has been taken. Therefore, the issue of service connection for claimed tinnitus is being referred to the RO, again, for appropriate action. Please note 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). FINDINGS OF FACT 1. The Veteran's reports of having in-service exposure to elevated noise levels are consistent with his duties during active service and his lay assertions are credible for the purpose of establishing a continuity of symptomatology referable to having hearing loss since service. 2. The currently demonstrated bilateral hearing loss is shown as likely as not to be due to in-service exposure to hazardous noise levels. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by bilateral hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 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 The Veterans Claims Assistance Act of 2000 (VCAA) The Board has considered the provisions of VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal-or VA's development of his claim-in light of the fact that the Board is granting the claim of service connection for spondylolisthesis of the lumbar spine. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. The Veteran's DD-214 reflects that the Veteran served as a truck driver in the Army for three years. Service personnel records show that he served as a loadmaster in the Air National Guard for an additional 20 years. A June 1943 enlistment examination documented the Veteran had no ear abnormalities. There was no associated audiogram. The earliest audiogram included in the Veteran's service treatment notes is documented in a June 1960 annual flying examination report. The audiogram indicates pure tone thresholds, in decibels, were noted as follows: HERTZ 500 1000 2000 3000 4000 6000 For ISO add (+15) (+10) (+10) (+10) (+5) (+10) RIGHT 0(15) 0 (10) -10 (0) -10 (0) -10 (-5) -10 (0) LEFT 0 (15) -10 (0) -10 (0) -10 (0) -10 (-5) -10 (0) [The figures in parentheses represent audiometric thresholds in ANSI/ISO units, the standard currently in effect for audiometric data.] A March 1973 annual flying examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 0 0 5 5 25 LEFT 5 10 5 5 20 15 "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). A May 2002 VA treatment note indicated that the Veteran underwent an audiometric evaluation after he complained of a gradual decrease in hearing for the past seven to eight years. He noted a positive history of noise exposure during service. The examiner noted that audiologic and tympanometric evaluations indicated a moderate high frequency sensorineural hearing loss in both ears. Audiogram results were not included in the treatment note; however, they were included in a VA examination report dated in October 2007. The May 2002 audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 05 10 25 25 60 31.25 LEFT 10 15 15 25 50 26.25 Speech recognition scores were recorded as 100 percent in the right ear and 96 percent in the left ear. In a May 2007 private audiological evaluation report, the Veteran complained of decreased hearing that he attributed to military noise exposure. He reported that he served a total of 27 years in the military and he was in combat from 1943 to 1946. He noted that he served in the National Guard following his service in the Army during World War II. He indicated that he worked as a mail carrier following service and he stated that he was not exposed to significant noise. The private audiogram showed bilateral mild to moderate sloping sensorineural hearing loss that was greater in the high frequencies with a notched configuration "consistent with noise exposure" in the left ear. Speech discrimination scores were 84 percent bilaterally. The examining audiologist stated, "It is conceivable that the [hearing] loss [the Veteran] exhibits is due to his military experience, as there has been minimal noise exposure other than experienced during that time." During an October 2007 VA examination, the Veteran indicated that he was exposed to military noise exposure, including infantry and aircraft noise. He denied any recreational or occupational noise exposure. An audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 25 40 40 65 42.5 LEFT 20 30 35 50 70 46.25 Speech recognition scores were 92 percent bilaterally. The diagnoses were mild sloping sensorineural hearing loss in the right ear and moderate (mild) sloping sensorineural hearing loss in the left ear. The examiner noted that a medical follow-up was not necessary for an ear or hearing problem, and if a problem was treated, there would not be a change in hearing threshold levels. The examiner opined that the Veteran's current hearing loss was not a direct result of military noise exposure. She provided the following rationale: According to a 2002 Evidenced(sic)-based Statement by the American College of Occupational and Environmental Medicine "hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued." As quoted in Robert Dobie's book, "Medical-Legal Evaluation of Hearing Loss[,]" "Once the exposure to noise is discontinued, there is no significant further progression of hearing loss as a result of the noise exposure.", (sic) and, "Previous noise-induced hearing loss does not make the ear more sensitive to future noise exposure." According to a 2002 Evidenced(sic)-based Statement by the American College of Occupational and Environmental Medicine, "Noise exposure alone usually does not produce a loss greater than 75 decibels (dB) in high frequencies, and 40 dB in lower frequencies." Superimposing an age-related loss "may have hearing thresholds in excess of these values." In a May 2008 Notice of Disagreement, received by VA in June 2008, the Veteran reported that he had hearing problems since he separated from service. He noted that he had over 20 years of active duty and reserve service, during which he was exposed to the sounds of heavy equipment, aircraft engines, and combat. In March 2009, the Veteran was evaluated by a private audiologist. The Veteran reported a history of military noise exposure during World War II and during service in the National Guard and reserves. He stated that he was exposed to aircraft noise from C-97s and C-130s, artillery, and rifle fire. He reported that he worked as a mail carrier after service and he denied a history of occupational or recreational noise exposure. The private audiogram results showed normal hearing at 250 to 500 Hertz in both ears, mild sensorineural hearing loss at 1000 to 3000 Hertz in both ears, a moderate sensorineural hearing loss at 4000 to 8000 Hertz in the right ear, and a severe sensorineural hearing loss at 4000 to 8000 Hertz in the left ear. Speech recognition scores were "excellent" (96 percent) in the right ear and "very good" (88 percent) in the left ear. The private audiologist opined that it was as likely as not that the Veteran's bilateral high frequency sensorineural hearing loss was caused by exposure to noise during military service. In a March 2009 VA Form 9, Appeal to the Board, the Veteran reported that he was assigned to the 89th Infantry Division during World War II and he was exposed to combat noise exposure and noise from heavy equipment. He stated that he was exposed to additional heavy equipment noise and noise from large jet and propeller aircraft during his service in the Air National Guard. A June 2010 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 15 25 40 40 65 42 LEFT 05 20 30 50 75 44 Speech recognition scores were 84 percent for the right ear and 96 percent for the left ear. The diagnoses were normal sloping to a severe high frequency sensorineural hearing loss of combined types in the right ear and normal sloping to a moderate high frequency sensorineural hearing loss of combined types in the left ear. The examiner noted that, based on audiologic results, medical follow-up was unnecessary for an ear or hearing problem as there was no problem which, if treated, might cause a change in hearing threshold levels. The examiner opined that the Veteran's current hearing loss was less likely than not directly due to military noise exposure and it was more likely than not due to aging, medical, and/or environmental factors. The examining audiologist stated, "While private sector audiologists in the community are highly qualified examiners, VA audiologists are privy to [veterans'] military medical records which demonstrate [veterans'] auditory acuity during service." She noted that the earliest audiometric evaluation available in the claims file was a separation examination audiogram from 1962 that showed the Veteran's hearing was well within the normal limits. She indicated that the latest audiometric evaluation available in the Veteran's service treatment records was dated in March 1973, and it showed hearing within normal limits. The examiner reported that, in 2007, a VA audiologist documented a shift in auditory acuity from 2002 to 2007. She noted that the Veteran had not been exposed to military noise since 1985; therefore, she concluded that the shift was more likely than not due to aging. The examining audiologist also noted provided the following rationale to support her opinion: Research studies have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. It does not have a delayed onset nor is it progressive or cumulative... The Institute of Medicine released a landmark study on Military Noise Exposure in September 2005. The study stated "that there was no scientific basis for delayed or delayed onset noise-induced hearing loss, i.e. hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. In cases where there were entrance and separation audiograms and such tests were normal, there was no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to military service." According to a 2002 Evidenced(sic)-based Statement by the American College of Occupational and Environmental Medicine "hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued." As quoted in Robert Dobie's book, "Medical-Legal Evaluation of Hearing Loss[,]" "Once the exposure to noise is discontinued, there is no significant further progression of hearing loss as a result of the noise exposure.", (sic) and, "Previous noise-induced hearing loss does not make the ear more sensitive to future noise exposure." In October 2012, the Veteran submitted an article from the Journal of Neuroscience, in which the author asserts that acoustic overexposure causing moderate, but completely reversible, threshold elevation leaves cochlear sensory cells intact, but causes acute loss of afferent nerve terminals and delayed degeneration of the cochlear nerve. According to the author, these results suggest that noise-induced ear damage has progressive consequences that are considerably more widespread than those revealed by conventional threshold testing, adding to hearing difficulties in noisy environments and other ear problems. In a February 2013 VA addendum opinion, the June 2010 VA examiner provided the following opinion: I offer no change to my medical opinion. Opinion stands that the current hearing loss is less likely due to military noise exposure and more likely than not due to aging, medical and/or environmental factors. Between 1962 and 1973, [the Veteran] demonstrated no significant threshold shift. Shifts in hearing began as [the Veteran] aged. The degree and configuration of [the Veteran's] current hearing loss (demonstrated in 2010) would certainly give cause for difficulty understanding speech from a distance or in other environments such as when background noise is present. Landmark studies from the Institute of Medicine, Robert Dobie, and from the American College of Occupational and Environmental Medicine state "that there was no scientific basis for delayed or late onset noise-induced hearing loss, i.e. hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. In cases where there were entrance and separation audiograms and such tests were normal, there was no scientific basis for concluding that hearing loss that develops 20 to 30 years later is causally related to military service.["] Initially, the Board will consider whether there is evidence of any in-service acoustic trauma. As noted, the Veteran's DD Form 214 reflects that he served as a truck driver in the Army for three years. Service personnel records show that he served as a loadmaster for C-97s and C-130s in the Air National Guard for an additional 20 years. Thus, the Veteran's reports of in-service noise exposure appear to be consistent with his Army and Air National Guard duties. The Veteran is also competent to describe his exposure to loud noise in service. Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notwithstanding evidence of in-service noise exposure, service connection requires that there be a current disability related to such exposure. For VA purposes, 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. As noted, a hearing loss disability was not shown during active service. Regardless, a veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The evidence shows that the May 2002 VA audiology consultation yielded results that would serve to establish the presence of a bilateral hearing loss disability for compensation purposes. The October 2007 and June 2010 VA examinations yielded similar results. Having found a current disability, the Board must consider whether such is related to the in-service noise exposure. As discussed, the claims folder contains both positive and negative medical opinions. Under the benefit-of-the-doubt rule, however, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence in the record, such a conclusion cannot be made in this case. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss disability is warranted. 38 C.F.R. § 3.102. ORDER Service connection for a bilateral hearing loss is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs