Citation Nr: 1317749 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 11-07 113 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, wherein the RO, in pertinent part, denied entitlement to service connection for bilateral hearing loss. The case now resides with the Chicago, Illinois RO. 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). FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, bilateral hearing loss disability has been found to be causally related to active duty. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for bilateral hearing loss, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Legal criteria Service connection - in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 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 always 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran avers that his current bilateral hearing loss is related to his period of active duty service. In a March 2009 statement, the Veteran reported that he had to use a Howitzer every day, all day, for the whole time during the Battle of the Bulge. He stated that he also used other weapons. In his application for compensation, the Veteran explained that although he was a clerk typist and mail clerk when he served in the United States, when he went into the European theater, he used the Howitzer and fired 50 caliber guns during training. The Veteran's fellow serviceman, C.M., submitted a lay statement and explained that they used 50 caliber machine guns during training on the firing range and had to learn to fire Howitzers. He stated that when they were shipped overseas, they were assigned to help the 82nd Airborne at the Battle of the Bulge where they fired and unloaded ammunition. He stated that there were no ear plugs or protection. He believed that firing from both the 50 caliber guns and Howitzer had a great effect and damage to their hearing. Concerning evidence of a current disability, the VA audiogram performed in connection with the April 2009 VA examination reflects bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Accordingly, the Veteran has a current disability. With respect to evidence of incurrence of an in-service disease or injury, the Board notes that the Veteran's service treatment records are absent for any complaints for or treatment of decreased hearing acuity during his period of active duty. The Veteran's hearing at separation was recorded as normal (15/15) based on whispered voice tests. However, as noted in Training Letter 10-02, which was issued in March 2010 regarding the adjudication of claims for hearing loss, "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02), dated March 18, 2010. In that letter, the Director of the VA Compensation and Pension Service stated that "whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur." Id. The Veteran's DD Form 214 shows that he served from March 1943 to January 1946. His military occupational specialty (MOS) was listed as clerk typist. As noted above, the Veteran stated that he participated in combat and he was exposed to loud noise from operating Howitzers and other weapons. The DD Form 214 reveals that the Veteran earned three Bronze Battle Stars for his participation in the European-African-Middle Eastern Theatres in World War II (WW II). Although the Veteran was not awarded a decoration that conclusively establishes combat participation, research performed at the Board reflects that during WW II, bronze service stars were authorized to be worn on the ribbons for the three campaign medals for WWII, to denote battle participation (see Personal Participation in World War II, Military Awards and Decorations, Reference Information Paper 92, page 10, National Archives and Records Administration, Washington, D.C. (2000), compiled by Benjamin L. DeWhitt, Purdue University). Because a WW II-issued bronze service star suggests battle participation, and because the Veteran earned three such stars, any remaining doubt concerning his combat status is resolved in the Veteran's favor. In this regard, the Veteran reported that he was exposed to loud noises, such as Howitzers, during his participation in battle. Therefore, the Board finds that the Veteran was exposed to acoustic trauma during his active duty service. With respect to a nexus opinion, the Veteran was provided a VA examination in April 2009. The examiner noted review of the claims file and indicated that the Veteran's MOS was clerk typist but that the claims file documented that the Veteran served in combat. The Veteran reported combat noise exposure and exposure to 50 caliber machine guns. No ear protection was worn. With respect to occupational noise exposure, he worked in the grocery store business for 54 years and no ear protection was necessary. With respect to recreational noise exposure, the Veteran was a quail hunter at one time and did not use ear protection. The examiner noted the relevant evidence in the claims file including the results of a whispered voice test at separation and indicated that whispered voice tests are not "frequency-specific in nature and can miss hearing losses." The examiner indicated that with no objective or frequency specific information regarding this veteran's hearing at induction or separation, he was unable to resolve the issue of service connected hearing loss without resort to mere speculation. However, the examiner did relate the Veteran's tinnitus to his in-service noise exposure. In addition, the Veteran submitted a letter from his private audiologist, M.H. In the May 2012 letter, M.H. noted that the Veteran reported 15 months of combat time while serving during WW II and the Veteran reported decreased hearing and tinnitus while in active duty. The clinical impression was that the Veteran suffered enough noise exposure during his active military service to acquire this hearing loss as well as tinnitus. In this case, the Board concludes that the evidence, as it now stands, is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service acoustic trauma. In reaching this conclusion, the Board recognizes that the VA examiner could not provide a medical opinion without resorting to mere speculation. However, there is positive evidence relating the Veteran's bilateral hearing loss to his in-service acoustic trauma. The Board finds that the private audiologist's opinion is supported by the evidence in the claims file including the Veteran's conceded acoustic trauma during combat. Although the Board could remand for another nexus opinion regarding the etiology of the Veteran's claimed disability, the Board finds that the medical evidence is sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); 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). Accordingly, resolving any doubt in favor of the Veteran, the Board will grant service connection for bilateral hearing loss disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs