Citation Nr: 1320154 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-15 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In January and April 2012, the Board remanded the present matter for additional development and due process concerns. FINDING OF FACT The Veteran's hearing loss is due to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection of bilateral hearing loss have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 always 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). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id; see also 38 C.F.R. § 3.385. In cases where the evidence shows that the veteran engaged in combat with the enemy, VA will accept satisfactory lay or other evidence of service incurrence if it is consistent with the circumstances, conditions or hardship of such service, notwithstanding the fact that there is no official record of such in-service incurrence. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The evidence documents that the Veteran was awarded a combat infantryman badge. Thus, the Board finds that the "combat presumption" is applicable. The Board notes that this presumption does not establish a presumption of service connection, but it eases the combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). There must still be medical evidence of a current disability and a link between the current disability and in-service incurrence. 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. The September 1969 pre-induction examination reflects the Veteran's history that he was previously told that he had "some" hearing loss. Audiometric findings were "normal," albeit with elevated puretone thresholds at 3000 Hertz in both ears and 4000 and 5000 Hertz in the left ear. See Hensley, 5 Vet. App. at 159. The service treatment records reflect no complaints or findings indicative of hearing loss. The August 1971 separation examination record reflects normal hearing on whispered voice testing and a negative history as to any change since the previous examination. Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (15/15 on the voice test is normal). A November 1971 VA examination record indicates that no hearing loss was noted. An August 1981 occupational audiological examination record indicates that the Veteran had bilateral hearing loss, as defined by VA: at 3000 and 4000 Hertz, puretone thresholds were 50 decibels in the left ear and 55 and 60 decibels respectively in the right ear. The record further indicates that the Veteran reported exposure to gunfire in service and denied post-service occupational noise exposure. A January 2008 VA examination record reflects the Veteran's history of hearing loss which he believed was related to in-service noise exposure while serving in Vietnam. The Veteran explained that he was exposed to weapon fire and explosion and that on one occasion, an artillery piece was fired resulting in ringing in his ears for three days. The Veteran denied civilian noise exposure. The examiner noted that test results showed a stable bilateral high frequency sensorineural notching appearing cochlear in nature and noise-induced configuration. The examiner indicated that hearing loss due to acoustic trauma or high noise exposure occurs at the time of the incident. He explained that it is not delayed in time of onset. Thus, because the discharge exam showed 15/15 hearing on whisper voice test and no complaints of hearing loss, the examiner found the record indicated that the onset of the hearing loss was after service. In January 2012, the January 2008 VA examiner provided an addendum opinion. The examiner reported that exposure to noise does not always result in hearing loss. The examiner noted that, at his separation examination, the Veteran had normal hearing and "reported hearing ha[d] not changed from last physical (induction)." Thus, the examiner found the Veteran's hearing loss was "more likely than not related to something other than service noise exposure as it was reported normal with no complaint of hearing loss" at separation. The January 2008 VA examiner performed another audiological examination of the Veteran in April 2012. The examiner diagnosed bilateral sensorineural hearing loss. The examiner indicated that the hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that the discharge exam was "15/15 with no complaints, see medical oop 1." Service connection is warranted for hearing loss. The record reveals that the Veteran was exposed to noise in service as a result of combat and that he has consistently denied post-service noise exposure. The record further reveals that the Veteran had hearing loss, as defined by VA, and exhibited a notch of decreased hearing at 3000 and 4000 Hz in 1981. The presence of a notch of decreased hearing at a mid frequency with a return toward normal at higher frequency may be indicative of noise-induced hearing loss. See VA Training Letter 10-02. The Board acknowledges that the service medical records do not reflect any findings or histories of hearing loss and that the separation examination reflects normal hearing. The Board further acknowledges that a VA examiner has provided negative opinions reportedly based on the Veteran's negative history as to a change in hearing and normal audiological findings at separation. The discharge hearing screening was limited to a whisper voice test, however. It did not include an audiometric evaluation. Whispered voice tests can be inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure. See VA Training Letter 10-02. See also Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992) (audiometric evaluation is a more precise indicator of hearing problems than whisper voice testing.). Moreover, the Veteran did not specifically deny a change in hearing at separation. Rather, the Veteran made a generic statement of no change in health. The Board finds the normal whisper voice test and denial of a change in health at separation are not particularly probative evidence of no diminution of hearing acuity at separation, and when viewed in conjunction with the examiner's failure to discuss the evidence suggestive of noise-exposed hearing loss in 1981, the Board finds the examiners' opinions are not probative evidence against service connection. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). VA has a duty to notify and assist claimants for benefits. The decision above grants service connection for hearing loss. As such, there is no further need to discuss compliance with the duties to notify and assist. ORDER Service connection for hearing loss is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs