Citation Nr: 1318364 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 05-36 797A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which found that new and material evidence had not been submitted to reopen the Veteran's claim seeking service connection for bilateral hearing loss. In August 2008, a Travel Board hearing was held at the RO before a Veterans Law Judge; and a transcript of the hearing testimony is in the claims file. In October 2008, the Board found that new and material evidence had been submitted to reopen the Veteran's claim, and remanded the reopened issue of entitlement to service connection for bilateral hearing loss for additional development and readjudication on the merits. In May 2010, the Board issued a decision which denied service connection for bilateral hearing loss. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2011, the Court issued a memorandum decision that vacated the Board's May 2010 decision and remanded the case to the Board for additional evidentiary development. During the course of this appeal, the Veterans Law Judge, who conducted the August 2008 hearing, left his employment with the Board. In a January 2012 letter, the Board asked the Veteran if he desired a new hearing. The Veteran did not respond. In July 2012 and February 2013, the Board remanded the claim for additional development. In April 2013, the RO granted service connection for right ear hearing loss, leaving the issue of entitlement to service connection for left ear hearing loss on appeal. FINDING OF FACT The Veteran's left ear hearing loss was caused by acoustic trauma during active service. CONCLUSION OF LAW Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for left ear hearing loss constitutes a complete grant of the benefits sought on appeal, no further action is required to comply VA's duties to notify and assist. 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; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of 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)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by 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 by continuity of symptoms of the disease since service. In this case, hearing loss is considered to be an organic disease of the nervous system, and thus a presumptive disease. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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; 38 C.F.R. §§ 3.307, 3.309. 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 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 active service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for 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). At the outset, service personnel records reflect that the Veteran served as a light weapons infantry crewman and received the Bronze Star, therefore his account of his exposure to acoustic trauma is credible and entirely consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b)(West 2002); 38 C.F.R. § 3.304(d) (2012). As a combat veteran, he is entitled to have his statements accepted. Having determined that the Veteran was likely exposed to acoustic trauma during his service, the remaining questions before the Board are whether the Veteran has a current diagnosis of left ear hearing loss for which service connection may be granted, and whether there is a nexus between that hearing loss and his service. Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Veteran's service treatment records include an audiogram conducted at enlistment in June 1969, showing pure tone thresholds in the left ear were 5, 0, 5, and 5 decibels at 500, 1,000, 2,000, and 4,000 Hertz (Hz). A subsequent audiogram in March 1971 at separation revealed pure tone thresholds in the left ear of 20, 10, 15, 20, 15, and 30 decibels at 500, 1,000, 2,000, 3,000, 4,000, and 6,000 Hz. These hearing thresholds do not meet the criteria for disability under VA regulations. See 38 C.F.R. § 3.385. There is no medical evidence suggesting that left hearing loss was diagnosed within the one-year presumptive period after service. An audiogram conducted at enlistment to the National Guard in October 1973 shows pure tone thresholds in the left ear were 28, 18, 5, and 5 decibels at 500, 1,000, 2,000, and 4,000 Hz. There are no pertinent clinical records associated with the claims file until a VA examination in July 2002. The examiner noted the claims file was unavailable for review. At that time, the Veteran reported a history of hazardous noise exposure from firearms, machine guns, mortars, the firing range, helicopters, tanks, heavy artillery, combat explosions, demolitions, aircraft engines, the flight line and ship engines. He also reported post-service noise exposure from trucks, lawn mowers, weed eaters, and leaf blowers. On audiological evaluation pure tone thresholds for the left ear were 15, 20, 10, 30 and 25 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner noted the Veteran was routinely exposed to hazardous levels of noise from weapons as an infantryman with a tour of combat duty in Vietnam and was likely subjected to other significant acoustic trauma. He concluded that it was likely that the Veteran's history of unprotected military noise exposure contributed to his current loss of hearing. On February 2005 VA examination, pure tone thresholds for the left ear were 15, 25, 15, 30, and 25 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 98 percent in the left ear. The audiological results were summarized as essentially normal hearing in the left ear. The examiner noted the claims file was unavailable for review, but noted the Veteran reported the onset of hearing loss 2-3 years after his discharge from the Army. He concluded that military noise exposure was not responsible for the Veteran's hearing loss. On September 2006 VA examination, the Veteran's history to hazardous in-service noise exposure remained unchanged. The examiner reviewed the claims folder noting the Veteran had normal hearing bilaterally across test frequencies at enlistment and discharge. Pure tone thresholds for the left ear were 15, 20, 15, 30, and 25 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The audiological results were summarized as normal to mild sensorineural hearing loss. The examiner concluded the hearing thresholds presented did not meet VA criteria for disability. The Veteran submitted a private medical report from an otolaryngologist dated in June 2008, which shows a diagnosis of mild to moderate sensorineural hearing loss. The report demonstrates that hearing loss of greater than 40 decibels at 3000 Hz in the left ear. On December 2009 VA examination, the Veteran's reports of in-service and post-service noise exposure were unchanged. On audiological evaluation pure tone thresholds for the left ear were 15, 20, 20, 40, and 35 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The audiological results were summarized as mild to severe sensorineural hearing loss. The examiner referred to the in-service audiometric examination from enlistment in 1969, noting normal hearing acuity in both ears and the separation exam in 1971 which showed normal hearing acuity in both ears with exception of slight sensitivity at 6000 Hz in the left ear. The examiner concluded that hearing loss was less likely as not due to noise exposure during service. On July 2012 VA examination, audiological evaluation pure tone thresholds for the left ear were 10, 20, 15, 35, and 35 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The examiner found that the Veteran did not have hearing loss to meet the criteria for a disability under VA regulations. On April 2013 VA examination, audiological evaluation pure tone thresholds for the left ear were 10, 20, 15, 35, and 35 decibels at 500, 1000, 2000, 3,000, and 4000 Hz. Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The examiner reviewed the claims file, and determined that it was at least as likely as not that the Veteran's left ear hearing loss was caused by acoustic trauma in service. The examiner explained that on separation examination, there was an indication of mild hearing loss in the left ear at 6000 Hz. There had been several conflicting opinions and over the previous few years, research had been improving in general concerning hearing loss, shifts, and thresholds. The Veteran's service records included actual tracing cards, for both enlistment and separation, and those cards showed a significant shift at 6000 Hz, a finding the previous examiners may not have weighted heavily enough in light of recent research. Ideally, the testing should have been repeated for verification, but was not. Thus, there was evidence of hearing loss at 6000 Hz on service separation. First, the Board finds that the Veteran has suffered from left ear hearing loss during the appeal period, specifically, as shown on December 2009 VA examination. The Board notes that his hearing loss at 3000 Hz was less apparent on subsequent examinations, 35 decibels rather than 40 decibels. However, because he was shown to suffer from left ear hearing loss during the appeal period, service connection for that disability must be considered. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Having determined that the Veteran suffered from, or has suffered from, left ear hearing loss during the pendency of the appeal, the question before the Board is whether that hearing loss was caused or aggravated by his service. The Board finds that the weight of the credible evidence supports a finding that his left ear hearing loss was caused or aggravated by his service. In so finding, the Board places the highest probative weight on the April 2013 VA opinion finding in favor of the Veteran because that opinion is accompanied by the most thoroughly explained rationale of the many opinions of record. Moreover, the opinion takes into account a careful review of the Veteran's service treatment records which did in fact show a significant decrease in hearing loss at 6000 Hz, a finding that was supported by recent research to show an onset of hearing loss. That opinion correlates with the July 2002 VA opinion, which also found it to be as likely as not that his current hearing loss was caused by his service. In so finding, the 2002 examiner placed weight on the Veteran's credible combat experience and accompanying noise exposure. Thus, the 2002 opinion was also well-explained, was based on competent evidence, and is therefore probative in this case. The other opinions of record finding against the Veteran's claim, those dated in February 2005 and December 2009, are unaccompanied by clear rationale. The examiners instead, although acknowledging in-service noise exposure and an indication of hearing loss on separation at 6000 Hz, provided blanket conclusions that his hearing loss was not related to service. The examiners did not appear to take into account, and certainly did not discuss, the Veteran's in-service combat exposure or why the high frequency hearing loss shown on separation examination was not indicative of the onset of hearing loss. The Board cannot place weight on those opinions because they appear contradictory to the hearing loss shown on separation examination and credible evidence of combat noise exposure. Thus, when weighing the evidence, the Board finds in favor of the Veteran. In this case, there is evidence of a disability during the appeal period and the competent and probative VA opinions found that it was at least as likely as not that his left ear hearing loss was caused or aggravated by his service. Accordingly, service connection for left hearing loss is granted. ORDER Service connection for left ear hearing loss is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs