Citation Nr: 1319997 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 10-01 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral hearing loss. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran filed a notice of disagreement (NOD) with this determination in February 2007. Subsequently, in June 2007 and May 2008 rating decisions, the RO again denied the Veteran's claim of service connection for bilateral hearing loss. The Veteran filed an additional NOD with this determination in March 2009, and timely perfected his appeal in January 2010. In November 2011 and January 2013, the Board remanded the Veteran's claim of service connection for bilateral hearing loss for further examination. This development has now been completed. The Board notes that the appeal originally included the claim of service connection for tinnitus. The Appeals Management Center (AMC) granted service connection for this disability in an April 2013 rating decision. This decision constitutes a full grant of benefits. Therefore, the claim of service connection for tinnitus is no longer on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The evidence demonstrates that the Veteran's currently diagnosed bilateral hearing loss is related to his active service. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. If a chronic disorder such as an organic disease of the nervous system is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.385, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss is due to his active service. Specifically, he reported that he was around the flight line daily at March Air Force Base, and was exposed to extreme noise from the jets. Additionally, his participation on the Air Force Honor Guard, which involved the firing of rifles on a regular bases, also contribute to his present hearing loss. The Veteran has a current disability of hearing loss in both ears pursuant to 38 C.F.R. § 3.385. This is demonstrated in the April 2008 VA examination report. The VA examination demonstrated auditory thresholds over 40 decibels in the 3000 and 4000 Hz frequencies in the right ear and the 2000, 3000, and 4000 Hz frequencies in the left ear. By way of history, the Veteran's March 1963 enlistment hearing screening included a Whisper Voice Test on which the Veteran scored a 15/15, which was considered normal. However, the Board notes that the whisper voice test is a less precise indicator of hearing loss than audiometric testing. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). Nevertheless, the Veteran's service treatment records are void of documentation of any complaints or clinical findings of hearing loss. The February 1967 separation examination contained audiometric test results, however, the Veteran's hearing was not considered to be disabling under VA regulations at that time. Nevertheless, as noted above, the absence of documented hearing loss while in service is not fatal to a hearing loss claim provided that the Veteran submits evidence of a current disability that is causally related to service. See Ledford, 3 Vet. App. at 89 (1992); Hensley, 5 Vet. App. at 159-160 (1993). The Board observes that the Veteran is competent to state that he experienced noise exposure in service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's DD 214 noted that the he was a basic airman and his occupation was a material facility specialist at March Air Force Base. Additionally, his personnel records show that he was also a flight line technician. Accordingly, the Board concludes that it is likely that the Veteran was exposed to acoustic trauma from jets while on active duty at March Air Force Base. The remaining question, therefore, is whether there is medical evidence of a nexus or relationship between the current hearing loss disability and in-service noise exposure. The Veteran submitted a February 2007 letter from his VA physician. The physician noted that the Veteran's hearing deficit may have been caused by his service on the flight deck when he was in the military. The same VA physician submitted an additional January 2008 statement. He stated that in reference to the Veteran's hearing loss, it was his professional opinion that this condition was more likely than not related to the acoustic trauma he was subjected to throughout his military service. The Veteran was afforded a VA audiological examination in April 2008. The Veteran reported that he worked in an aluminum extrusion factory for six months prior to service. In-service, he worked as a supply clerk on the flight line and in the Honor Guard, where he was exposed to 21 gun salutes. After service, the Veteran worked as a dispatcher for four years, as a foreman and production manager for a mobile home plant for 20 years, and as a real estate agent. He reported occasional exposure to power tools without hearing protective device. The VA examiner diagnosed the Veteran with mild to moderate high frequency sensorineural hearing loss in the right ear and moderately-severe mid to high frequency sensorineural hearing loss in the left ear. The examiner noted that the Veteran's service treatment records were not available for review. The examiner concluded that based on the Veteran's reported history of significant noise exposure both during and after military service, it was not possible to determine the etiology of the hearing loss without resort to mere speculation. On the January 2010 Form 9, the Veteran reported that even though he worked at a mobile home factory, his duties were those of a dispatcher, and not subject to loud noises. He further stated that it was apparent that the ongoing severe unprotected noises from being on the flight line with B-52 bombers that were always in a ready position and the Honor Guard, caused his hearing problems. The Veteran was afforded another VA examination in February 2013. The Veteran reported he was a student prior to entering the military. During his time in-service, he was exposed to jet engines and gunfire as a flight line technician, without hearing protection. After service, he worked as a dispatcher and administrative positions. He denied any recreational noise exposure. Upon audiological testing, the VA examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500 to 4000 Hz, bilaterally. The examiner concluded that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. The Veteran's hearing was within normal limits at separation, however, since there were no frequency specific hearing levels at enlistment, it was not possible to determine if a significant threshold shift occurred while in the service. Therefore, it was not possible to determine if the hearing loss was related to military service without resorting to mere speculation. After a careful review of the evidence, the Board finds that the Veteran's in-service noise exposure, pertinent lay evidence, and the positive nexus opinion provided by the Veteran's VA physician, demonstrate that his currently diagnosed bilateral hearing loss is related to his period of military service. The Board recognizes that the Veteran was not diagnosed with hearing loss in service and that, on his separation examination, the puretone tested was considered normal. However, as noted above, the absence of documented hearing loss while in service is not fatal to a hearing loss claim provided that the Veteran submits evidence of a current disability that is causally related to service. See Ledford, 3 Vet. App. at 89 (1992); Hensley, 5 Vet. App. at 159-160 (1993). In the present case, the Veteran was afforded VA examinations in April 2008 and February 2013 to determine the nature and etiology of his bilateral hearing loss. The Board finds that the VA examiners' opinions stating that they could not speculate as to the etiology of the Veteran's hearing loss, are not dispositive. Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the Board should ensure that any such finding is well supported by the facts and data and reflects that the examiner has considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis). Therefore, the Board finds that these VA opinions are not adequate for rating purposes. Additionally, the record contains a positive nexus opinion pertaining to the Veteran's bilateral hearing loss from a VA treating physician. Further, there are no medical records refuting the Veteran's diagnosis of bilateral hearing loss and its relation to his noise exposure in-service. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise with respect to the Veteran's bilateral hearing loss claim. He is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Indeed, where the evidence supports a claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert, 1 Vet. App. at 53. Accordingly, the Board finds that service connection for bilateral hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs