Citation Nr: 1318765	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  12-31 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from August 1944 to July 1946, and he also had active service in the United States Air Force from June 1949 to November 1953.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied service connection for bilateral hearing loss.  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).

In April 2013, the Veteran testified at a hearing conducted at the Waco RO before the undersigned.  A transcript of the testimony has been associated with the Veteran's claims file.  

The  issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The Veteran's bilateral sensorineural hearing loss is etiologically related to his military service.  


CONCLUSION OF LAW

The Veteran has bilateral sensorineural hearing loss that is the result of disease or injury incurred in active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012).  


REASONS AND BASES FOR FINDING 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 respect to the issue of entitlement to service connection for bilateral hearing loss, 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, 1131; 38 C.F.R. § 3.303(a).  Generally, establishment of direct service connection for a disorder requires evidence of (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) 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."  Id.  

Also, the Court of Appeals for the Federal Circuit (Federal Circuit) held that, unlike §3.303(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 developed bilateral hearing loss due to exposure to acoustic trauma while serving in the military.  He further maintains to have experienced on-going hearing loss since then.  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.

The Board notes that the majority of the service treatment records associated with the Veteran's first period of service (August 1944 to July 1946) are currently unavailable.  The Veteran was informed in the January 2010 notification letter that due to a fire at the National Archives and Records Administration on July 12, 1973, his military records may have been destroyed.  The RO attempted to locate the Veteran's service treatment records through alternative means but was unsuccessful.  However, the July 1946 examination pursuant to the Veteran's discharge from the U.S. Army, and service treatment records pertaining to the Veteran's subsequent periods of service have been retrieved and associated with the claims file.  

Turning to these records, the Board notes that at the July 1946 discharge examination, the physical examination of the ear, nose and throat was negative for any abnormalities, and findings from the whispered voice tests were shown to be 15/15 in both ears.  The June 1948 physical examination report was also negative for any ear abnormalities, and the whispered voices tests were shown to be 15/15 in both ears.  At the August 1949 examination, the authorized audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10(25)
10(20)
10(20)
XXXX
20(25)
LEFT
5(20)
5(15)
-5(5)
XXXX
0(5)

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 below.  

At the June 1952 medical examination, the clinical evaluation of the ears and drums was shown to be normal, and the Veteran denied a history of ear, nose or throat trouble in the medical history report.  Additionally, the authorized audiological examination reflected pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15(30)
20(30)
20(30)
XXXX
20(25)
LEFT
10(25)
10(20)
15(25)
XXXX
5(10)

At the August 1953 examination pursuant to the Veteran's separation from service, the clinical evaluation of the ears and drums was shown to be normal, and the Veteran denied a history of severe eye, ear, nose or throat trouble.  In addition, results from the whispered voice tests were 15/15, and the authorized audiological examination reflected pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20(35)
15(25)
15(25)
XXXX
20(25)
LEFT
15(30)
20(30)
20(30)
XXXX
20(25)

When comparing the Veteran's audiometric results at separation with earlier audiometric findings, the Board observes a slight increase in the Veteran's puretone thresholds in certain frequencies in both ears throughout the years.  

During the April 2013 hearing, the Veteran described his in-service experiences and attributed his hearing loss to these incidents.  He testified that he was exposed to extreme noise levels while firing his pistol on the firing range and from various forms of gunfire.  He also recalled an incident wherein his unit came under fire, and an artillery shell exploded within close proximity to where he was located.  According to the Veteran, he experienced a ringing sound in his ears, and had difficulty hearing after this incident.  See Hearing Transcript (T.), pp. 4-5.  The Veteran also described his exposure to aircraft noises and sounds while serving in the U.S. Air Force during his second period of duty.  See T., pp. 5-6; see also December 2012 Statement.  The Veteran's wife also testified during the hearing, and described certain habits displayed by the Veteran after his separation and throughout the years, to include watching television at a high volume, which demonstrated his difficulty hearing.  See T., pp. 9-10.  The Veteran further testified that he worked in office-type settings which did not involve any noise exposure after service.  See T. 6.  

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.")  

In the present appeal, the Veteran's DD form 214 associated with his first period of service reflects that he received the European-African Middle Eastern (EAME) Campaign Ribbon with 2 Bronze Stars, the Purple Heart, and a Combat Infantryman Badge (CIB).  In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  Here, based on the Veteran's military duty assignment as well as his receipt of the CIB, the Board concedes that the Veteran was exposed to acoustic trauma 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. In this regard, the Veteran was afforded a VA audiological evaluation in April 2010, and, on the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
45
50
70
75
LEFT
30
45
25
40
60

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left.  The Veteran was diagnosed with mild to severe mixed hearing loss in the right ear, and mild to moderately severe sensorineural hearing loss in the left ear.  These findings meet the requirements of 38 C.F.R. § 3.385 (2012).  

Thus, the remaining question pertaining to service connection is whether the Veteran's current hearing loss is related to his military noise exposure.  During the April 2010 examination, the Veteran provided his military history and described the various forms of acoustic trauma he was exposed to.  He denied any occupational or recreational noise exposure post-service, and further reported to experience difficulty understanding speech in all situations.  Upon reviewing the Veteran's service treatment records, the VA audiologist acknowledged the July 1946 separation examination report wherein the whispered voice test results were shown to be 15/15.  According to the VA audiologist, the whispered voice test is "known to be unreliable because it is insensitive to high frequency loss."  Based on her review of the claims file, as well as her discussion with, and evaluation of, the Veteran, the VA audiologist diagnosed the Veteran with bilateral hearing loss, and concluded that it was less likely as not that the Veteran's current hearing loss was due to any in-service noise exposure.  According to the VA audiologist, due to the absence of "ear-and frequency-specific audiometric" testing at the Veteran's enlistment and separation examinations, it is not possible to determine whether there was a change in the Veteran's hearing during his first period of military service.  The VA audiologist also referenced the enlistment and separation examination reports associated with the Veteran's period of service in the Air Force, and noted that the documented hearing results were within normal limits bilaterally.  

The Veteran also underwent another audiological evaluation with a private hearing specialist in December 2011.  The private audiologist, K.M.D., reviewed some of the Veteran's service treatment and personnel records, and found that the Veteran had "significant noise exposure" while serving as a rifle man and mortar gunner in the World War II European theater, and while serving as an intelligence officer on the flight line in the Air Force.  She further acknowledged the fact that the Veteran received a Purple Heart as a result of the explosion that occurred in a bunker during World War II.  K.M.D. also conducted an audiological evaluation of the Veteran, the results of which showed pure tone thresholds, in decibels as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
50
XXXX
90
LEFT
20
40
30
45
60

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 Unites States Court of Appeals for Veterans Claims (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).  Based on her review of the records and her discussion with, and evaluation of the Veteran, K.M.D. determined that the pattern of the test results are "consistent with noise-induced hearing loss which is as likely as not as a result of [the Veteran's] military service."  

The Veteran was afforded another VA audiological evaluation in September 2012, at which time, he once again attributed his current hearing loss to his exposure to excessive noise levels in service, and described a history of noise exposure while serving as an infantryman, and working near and around various forms of aircraft in service.  The VA audiologist conducted an audiological evaluation of the Veteran, the results of which showed pure tone thresholds, in decibels as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
55
75
80
LEFT
30
45
55
55
65

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear.  

Based on his review of the claims file, as well as his evaluation of the Veteran, the VA audiologist diagnosed the Veteran with mild to severe sensorineural hearing loss bilaterally, and determined that said hearing loss was less likely as not caused by or a result of military noise exposure.  In rendering this conclusion, the VA audiologist relied on the Veteran's normal audiometric test results at his separation examination in 1953.  

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.  

Neither VA examiner in this case provided a thorough discussion for the conclusions reached or the opinions rendered in the reports.  In rendering their negative opinions, both VA examiners appear to rely on the Veteran's normal audiological results at the time of discharge.  However, as previously discussed above, the Veteran's audiometric findings at discharge did reflect a slight decrease in his hearing acuity at certain thresholds when compared to the puretone thresholds at earlier examinations.  Also, by noting that the Veteran was shown to have normal hearing on his separation examination report, the VA examiners 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 examiner 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).  

On the other hand, the December 2011 private audiologist considered the Veteran's description of his in-service experiences and his exposure to loud sounds while serving as an infantryman and intelligence officer in service.  In addition, she considered the Veteran's description of the noise exposure he experienced while serving in combat, conducted an audiological evaluation of the Veteran, and rendered an opinion based on these experiences and the examination results.  Based on the audiometric readings, she explained that the pattern of the test results was consistent with noise induced hearing loss, and determined that the Veteran's hearing loss was related to his military service.  

It would have also been helpful if the private audiologist brought her expertise to bare in this manner regarding medically known or theoretical causes of sensorineural hearing loss or described how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause.  However, the Board finds it unnecessary to remand this case again for another medical opinion.  Instead, given that the positive December 2011 opinion indicates that, at minimum, the high frequency sensorineural portion of the Veteran's hearing loss is consistent with hearing loss due to noise exposure, and in light of the Veteran's account of his in-service experiences, his assertions of continuing hearing problems since service, his denial of any occupational and recreational noise exposure post-service, and the fact that the Board has conceded that the Veteran had noise exposure in service, the Board will resolve reasonable doubt about the connection between the current hearing loss and the noise exposure in service in his favor and grant service connection for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Of particular significance to the Board in this matter are the Veteran's conceded in-service acoustic trauma and his competent and credible complaints of continuing hearing problems since service.


ORDER

Service connection for bilateral hearing loss is granted.  





____________________________________________
THOMAS H. O'SHAY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs