Citation Nr: 1319348 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-32 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1983 to February 1984, November 2003 to May 2005, and July 2006 to June 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes the record reflects the Veteran also filed a substantive appeal for his claim for an increased rating for traumatic brain injury in August 2009. However in a February 2013 written statement the Veteran's representative indicated the Veteran did not want to continue his appeal for traumatic brain injury, and only wanted the Board to address the issue of hearing loss. As such, the Board finds the written brief submitted by the Veteran's representative serves as a written withdrawal of the Veteran's appeal for traumatic brain injury and the issue will not be further addressed. 38 C.F.R. § 20.204. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. In a February 2013 written statement the Veteran indicated his PTSD should be raised. As such, the issue of an increased rating for service-connected PTSD 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 this issue, and it is referred to the AOJ for appropriate action. FINDING OF FACT The weight of the evidence establishes the Veteran currently has hearing loss in the right ear which began during, or was otherwise caused by, his military service, to include any noise exposure therein. CONCLUSION OF LAW The criteria for service connection for right hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, the regulations provide that for chronic diseases, as listed under 38 C.F.R. § 3.309(a), is such in service so as to permit a finding of service connection, then subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrant causes. Sensorineural hearing loss is an 'organic disease of the nervous system' and is included on the list of chronic diseases at 38 C.F.R. § 3.309(a) and as such 38 C.F.R. § 3.303(b) may apply. See Walker v. Shinseki, F. 3d 1331 (Fed. Cir. 2013). The Veteran is currently seeking service connection for hearing loss in his right ear. Under the regulations hearing impairment constitutes a disability for VA purposes when 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 Court of Appeals for Veterans Claims (Court) has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As an initial matter, the Board notes the Veteran honorably served in the Army as an infantry man, and served in combat, as evidenced by his Purple Heart award. As such, the Board concedes the Veteran was exposed to loud noise during military service. See 38 U.S.C. § 1154. Service treatment records from all three of the Veteran's periods of active military service were reviewed and reveal the Veteran was provided with several audiometric testings during service. The relevant results are summarized in the charts below, with pure tone threshold recorded in decibels. In September 1983, the Veteran's initial enlistment medical examination: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 15 LEFT 25 10 5 10 15 As such, the results of the Veteran's initial audio examination at enlistment established he had some hearing loss in his left ear, however he did not have hearing loss for VA purposes at initial enlistment. In December 1983, the results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 15 5 LEFT 5 5 5 10 15 The results of this audiometric testing establish the Veteran had normal hearing bilaterally. The Veteran then separated from his initial period of active military service in February 1984. In April 2003, while the Veteran served in the Army National Guard, results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 10 30 LEFT 15 15 5 5 15 As such, the results of this examination reflect the Veteran had some hearing loss in his right ear, however he did not have hearing loss for VA purposes at this time. Several months after this examination the Veteran reenlisted in active military service in November 2003. The evidence of record does not include the results of audiometric testing performed closer to the Veteran's second enlistment. As such, the Board finds the April 2003 testing is the most probative evidence of the Veteran's hearing acuity at re-entry. Therefore, the Board finds the Veteran did not have hearing loss for VA purposes when he re-entered active military duty in November 2003. Service treatment records establish the Veteran was struck by shrapnel in May 2004. In his June 2008 written statement the Veteran described after he was struck he took cover in a bunker. This bunker was struck by at least three additional mortars while the Veteran was inside. He asserted the acoustic trauma associated with these mortar explosions caused his current hearing loss. Roughly one year later, in April 2005, the Veteran was provided with additional audiometric testing shortly before separating from his second period of active duty. HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 15 45 30 LEFT 40 30 25 40 60 The Board notes the results of this testing reflect the Veteran experienced hearing loss for VA purposes for the first time during the period on appeal. See 38 C.F.R. § 3.385. As such, the Board finds that the evidence of record establishes the Veteran did not have hearing loss for VA purposes when he re-enlisted in November 2003, but he did have bilateral hearing loss for VA purposes when he separated from his second period of active duty in May 2005, providing probative evidence in support of the Veteran's claim. In May 2006 the Veteran was provided with additional audiometric testing in preparation for his re-enlistment for a third period of active military service in July 2006: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 25 30 LEFT 10 10 00 15 35 This examination reveals that before his last period of active service the Veteran had some hearing loss in both ears, but no longer had hearing loss for VA purposes at this time. As such, the record suggests the Veteran's previous loss of hearing acuity had improved. The Veteran re-enlisted for a third period of active duty in July 2006. That same month additional audiometric testing was conducted. HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 25 30 LEFT 10 10 0 15 35 The results from this testing suggest the Veteran's hearing acuity was unchanged from approximately two months earlier. The Veteran separated from active military service for the third time in June 2007. Shortly afterwards he was provided with audiometric testing in July 2007. HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 15 40 LEFT 5 5 0 20 35 The results of this examination establish that after his last period of active military service the Veteran had hearing loss for VA purposes in his right ear. See 38 C.F.R. § 3.385. As such, the evidence of record establishes the Veteran did not have hearing loss for VA purposes upon entrance to his third period of active military service, but did have hearing loss for VA purposes in his right ear upon separating from his third period of active military service, providing additional evidence in support of the Veteran's claim. Post-service treatment records have also been reviewed, and relevant records are summarized below. In June 2008 additional audiometric testing was performed by a VA facility. The results are summarized in the chart below, with pure tone threshold recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 30 35 LEFT 20 20 20 30 45 Word recognition testing was also conducted, and the Veteran scored 96 percent in both ears. However, the audiologist did not indicate if the Maryland CNC test was used as required by VA regulations. 38 C.F.R. § 3.385. This audiologist opined the Veteran had bilateral sensorineural hearing loss and measured the Veteran's ears for hearing aids. However, the Board notes the results of this audiometric testing reveal the Veteran had hearing loss for VA purposes in his left ear only. Id. In July 2008 a VA audiologist indicated the Veteran had bilateral sensorineural hearing loss. The physician noted mild hearing loss in the right ear, and mild to moderate loss in the left ear. He noted excellent word recognition ability at comfortable listening levels in both ears. The audiologist then fitted the Veteran for hearing aids. In September 2008 the Veteran was provided with a VA audio examination. The Veteran reported inability to hear conversations or the TV. He reported it was most difficult for him to hear when others talked to him. The Veteran reported no occupational or recreational noise exposure other than during his active military service. The examiner noted the Veteran had healed eardrum perforation bilaterally, as well as abnormal acoustic reflex test bilaterally. The examiner then performed audiometric testing, and the results are summarized below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 45 45 LEFT 40 45 50 55 60 The results of this audiometric testing establish the Veteran had bilateral hearing loss for VA purposes. Maryland CNC speech discrimination was also conducted in compliance with VA regulations. The Veteran scored an 88 percent in both ears, also reflecting hearing loss for VA purposes. 38 C.F.R. § 3.385. Based on the foregoing the examiner opined the Veteran had bilateral hearing loss, describing moderate hearing loss in the right ear and moderately severe hearing loss in the left ear. The examiner also specifically noted that with the Veteran's current binaural amplification he did fairly well, however without them he had difficulty understanding, impacting his usual occupation and daily activities. Additionally, the examiner noted the Veteran became dizzy during the appointment. In a subsequent addendum to her opinion the examiner opined the Veteran's healed eardrum perforations were mild, and the lack of acoustic reflex was more likely than not due to the severity of his hearing loss. In November 2008 the Veteran was provided with an additional VA audio examination. This examiner was able to review the Veteran's claims file, as well as personally interview and test the Veteran. The Veteran reported his primary compliant was difficulty understanding general conversation in crowds and background noise. The Veteran reported he currently worked as a bottle-capper operator. He reported exposure to machine noise at this job, but stated he wore the required hearing protection. The examiner then conducted audiometric testing, the results of which are summarized below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 30 30 LEFT 20 20 20 30 45 Maryland CNC test was also conducted and the Veteran scored 84 percent in his right ear, 64 percent in his left ear. The examiner noted the Veteran's performance at the word recognition testing was poorer than expected considering his degree of hearing loss and previously documented scores. As such, the examiner opined caution should be used when using these speech discrimination results for rating purposes. The examiner opined the results establish the Veteran had mild hearing loss in both ears, with moderate hearing loss at 4000 Hz in his left ear. The examiner opined the hearing loss in the Veteran's left ear was more likely than not due to his military service. However, the examiner did not opine the Veteran's right ear hearing loss was due to his military service. The examiner explained that the hearing loss documented at separation in 2005 was temporary, as evidenced by consistent improved results in 2006 and 2007. The examiner noted a mild permanent hearing loss in his right ear was first noted in 2003 and was not aggravated during the period of active duty as reflected in the results from 2006. Additionally, the examiner opined the Veteran's current hearing loss in his right ear did not constitute a disability for VA purposes. As such, the medical evidence of record establishes the Veteran's hearing acuity fluctuated throughout the period in question. However, based on review of all of the foregoing, the Board finds that weight of the evidence of record establishes the Veteran is entitled to service connection for right ear hearing loss. First, the Board finds that the evidence of record establishes the Veteran developed hearing loss for VA purposes during two different periods of military service, as evidenced by the audiometric testing results in April 2005 and July 2007, as discussed above. However, the Board finds both of these testings establishing hearing loss for VA purposes were followed by additional testing which suggested the Veteran's hearing acuity improved. While the April 2005 audiometric testing established bilateral hearing loss for VA purposes the May 2006 testing established the Veteran had no hearing loss for VA purposes. As such, the Board finds that although the evidence of record establishes the Veteran experienced hearing loss for VA purposes during his second period of active military service, the medical evidence fails to establish the condition was chronic at this time. Similarly, while the July 2007 testing results suggested the Veteran had hearing loss for VA purposes in his right ear, the testing results from June 2008 establish the Veteran had hearing loss for VA purposes in his left ear only. As such, the Board finds the evidence established the Veteran experienced hearing loss for VA purposes in his right ear during his third period of active military service, the evidence does not establish the condition was chronic at this time. VA regulations provide that if one of the conditions listed at 38 C.F.R. § 3.309(a) are noted during service but are not shown to be chronic then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, F. 3d 1331 (Fed. Cir. 2013). The Board notes the Veteran has submitted several lay statements in which he asserts his symptoms of hearing loss have been continuous since his active military service. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as loss of hearing acuity. Layno v. Brown, 6 Vet. App. 465 (1994). In his February 2009 written notice of disagreement the Veteran asserted that he did not have hearing loss before his active duty military service, but has experienced difficulties hearing since that time. The Veteran has made similar statements throughout the appeal, consistently relating his current hearing difficulties to acoustic trauma experienced during his active military service. As such, the Board finds the Veteran's lay statements with respect to his complaints of hearing loss are credible and provide probative evidence of chronic symptomatology since service. See Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran's lay assertions are also supported by the medical evidence of record. Since his third separation from active military service the Veteran has consistently sought medical treatment for his loss of hearing acuity, to include receiving hearing aids, as discussed above. As such, the Board finds the medical evidence of record establishes the Veteran has experienced continuity of symptoms of hearing loss since his active military service. Finally, the Board finds the VA examination in September 2008 establishes the Veteran currently had bilateral hearing loss for VA purposes, to include hearing loss in his right ear. The audiologist examined the Veteran and administered the Maryland CNC Word recognition test to determine the presence of a bilateral hearing loss disability, which is consistent with the requirements for hearing loss under VA regulation. See 38 C.F.R. § 3.385. The Board notes the results from the more recent VA examination in November 2008 are not in favor of the Veteran's claim as the examiner determined he did not have hearing loss for VA purposes in his right ear. Nonetheless, the Veteran was shown to have hearing loss in his right ear on the previous examination a few months earlier, which was during the appeal period. As discussed, this earlier examination complied with VA regulations and there is no reason to undermine the probative value of the examination. As such, the Veteran is shown to have a hearing loss for VA purposes in his right ear during the period on appeal. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, notwithstanding the determination of the more recent VA examiner, the Veteran is shown to have a current hearing loss disability in his right ear. The Board finds that the Veteran was exposed to acoustic trauma in service, he experienced a non-chronic hearing loss for VA purposes during two different periods of active military service, he provided consistent lay statements of continuous symptoms, and the medical evidence establishes he has a current hearing loss for VA purposes in his right ear. In addition VA regulations provide that reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Therefore, the Board finds entitlement to service connection for hearing loss in the right ear is warranted. Duties to Notify and Assist The Veteran's claim for service connection for right ear hearing loss is granted, which constitutes a complete grant of the benefits sought on appeal. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER The Veteran's claim for service connection for right ear hearing loss is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs