Citation Nr: 1319218 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-49 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado which denied the Veteran's claims for service connection for hearing loss and tinnitus. In his February 2009 notice of disagreement (NOD), the Veteran appealed the denial of service connection for both claims. Before the matter was transferred to the Board, by a October 2012 rating action, the RO granted service connection for tinnitus, and evaluated it as 10 percent disabling, effective October 23, 2008. 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, 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. Turning to the Veteran's service treatment records, at the December 1973 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 15 15 10 10 15 LEFT 15 15 20 25 20 The Board acknowledges that, based on these audiological findings, the Veteran had some hearing loss at the lower and higher frequencies in the left ear. However, while these findings reflect a slight level of hearing loss, as previously mentioned, the clinical evaluation of the Veteran's ears and drums was shown to be normal, and he had a physical profile of H1 at the time of this examination. See 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 addition, there are no pre-service audiological evaluations or reports reflecting any evidence, signs, or findings of hearing loss associated with the Veteran's claims file. Indeed, the examiner who evaluated the Veteran at his enlistment examination did not note there to be any hearing loss in the Summary of Defects and Diagnoses section, and the Veteran was found to be qualified for enlistment. Therefore, to the extent that any reasonable doubt exists as to whether the Veteran had a pre-existing hearing disability prior to the commencement of his active service on June 17, 1974, the Board will resolve this doubt in favor of the Veteran and finds that bilateral hearing loss did not pre-exist his period of service. He is therefore presumed to have been in sound condition at entry to service in June 1974. A review of the remaining service treatment records reflect that several years after his enlistment, the Veteran participated in a Hearing Conservation training program in an attempt to learn how to use hearing protection and prevent noise-induced hearing loss. An authorized audiological evaluation was conducted through that program in February 1977, the results of which revealed right ear auditory thresholds in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz as 15, 10, 10, 5 and 15. For the left ear, auditory thresholds in the same frequencies were recorded as 25, 10, 15, 20 and 20. It was noted that the Veteran was fitted for and issued ear plugs at that time. The Veteran underwent another audiological evaluation in December 1977, the results of which revealed right ear auditory thresholds in the same frequencies as 10, 5, 10, 5, and 10, and left ear auditory thresholds in the same frequencies as 15, 10, 15, 10, and 20. The clinical evaluation of the Veteran's ears and drums was shown to be normal at the June 1978 separation examination, and the authorized audiological evaluation pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 5 15 LEFT 15 0 15 15 10 In his February 2009 notice of disagreement (NOD), the Veteran described his in-service experiences and military duties, and attributed his hearing loss to these experiences. According to the Veteran, he was not only exposed to loud equipment noise while serving as a heavy equipment operator, but he was also exposed to extreme noises produced by the detonation of explosives and small arms fire. The Veteran maintains to have experienced difficulty hearing since service. See November 2008 statement of Veteran; February 2009 NOD; and December 2009 substantive appeal. 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 214 reflects that his military occupational specialty (MOS) was that of Equipment Operator. The Board finds the Veteran's account of noise exposure in service to be credible as it is consistent with his MOS. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event.). Furthermore, in the October 2012 rating decision, the RO determined that the Veteran's tinnitus was related to his military noise exposure and granted service connection for tinnitus. In so doing, the RO conceded exposure to acoustic trauma in service. 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. In this regard, the Veteran was afforded a VA audiological evaluation in September 2012, and, on the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 45 80 LEFT 20 30 30 60 70 Speech audiometry revealed speech recognition ability of 92 percent in both ears. The Veteran was diagnosed with sensorineural hearing loss in both ears. 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. In a February 2010 letter, the Veteran's family physician, J.K., D.O., acknowledged the fact that the Veteran served as a heavy equipment operator in the U.S. Navy from 1974 to 1978. According to Dr. K., "[i]t may well be therefore that exposure to high frequency noise affected his hearing and caused him difficulty with hearing and with conversation." As previously noted above, the Veteran underwent a VA audiological evaluation in September 2012. Based on her discussion with, as well as her evaluation of, the Veteran, the VA examiner diagnosed the Veteran with sensorineural hearing loss in both ears, and determined that said hearing loss was less likely as not caused by or a result of an event in military service. The VA examiner based her opinion on the Veteran's audiometric findings at enlistment into service, and the audiometric findings at separation, a comparison of which did not reveal a significant threshold shift. With respect to the right ear, the VA examiner noted that the Veteran's auditory threshold in the 6000 Hertz frequency range was 50 decibels at enlistment, whereas it dropped to 35 decibels at separation. The VA examiner further noted that the Veteran's entrance and exit examinations for the left ear both reflected normal hearing from the 500 to 6000 Hertz frequency range with no significant threshold shifts. Based on a comparison of these audiometric findings, the VA examiner determined that no hearing loss occurred while the Veteran was in service. 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 in-service 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 October 2012 decision, 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 September 2012 medical opinion which does not relate the Veteran's hearing loss to service. In rendering her negative opinion, the VA examiner appears to rely on the Veteran's normal audiological results at the time of discharge. However, by noting that the Veteran was shown to have normal hearing on his separation examination report, the VA examiner 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 she meant from what she 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 examiner 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. Thus, the Board finds that the VA examiner's 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 all reasonable doubt in the Veteran's favor, the Board finds that the Veteran currently has bilateral hearing loss that was incurred during his active military service as a result of exposure to loud noises. Accordingly, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 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