Citation Nr: 1320494 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-19 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1958 to October 1962. He also has subsequent service in the Missouri Air National Guard (ANG) and the Air Force Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded this case for additional development in April and August 2012 and most recently in March 2013. The case is again before the Board for further appellate consideration. The Veteran also perfected an appeal for service connection for tinnitus, however, as the claim was granted in full by the AMC in a December 2012 rating decision, that issue is no longer before the Board for consideration. FINDING OF FACT 1. Excessive military noise exposure has been conceded by VA. 2. The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss disability was incurred in, aggravated by, or is otherwise related to excessive military noise exposure sustained during active and Reserve/ANG service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 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 FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Given the favorable decision to grant the Veteran's claim for service connection for a bilateral hearing loss disability, a detailed explanation as to VA's compliance with the VCAA is unnecessary at this time. Notwithstanding, however, the Board observes that the Veteran's service treatment records from active service dating from October 1958 to October 1962 are incomplete with the exception of an August 1962 report of separation examination. Similarly, service treatment records pertaining to his Reserve/ANG service dating from 1985 until retirement in September 1999 are also unavailable for review. An October 2008 Formal Finding of Unavailability as to the aforementioned service treatment records documents development efforts made to obtain those records. The Veteran was notified of the unavailability the aforementioned active and Reserve/ANG service treatment records and he was requested to submit any such records in his possession. In accordance with his October 2008 response, a further attempt to obtain such records from the Air Reserve Personnel Center was made in November 2008, however, a negative response was received. Given the Board's favorable disposition to grant the full benefit sought on appeal, however, there is no prejudice to the Veteran and his claim decided herein due to the unavailability of his complete service treatment records. Thus, further discussion as to whether sufficient development efforts have been undertaken to locate the Veteran's missing active and Reserve/ANG service treatment records is not necessary at this time. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from an injury or disease incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(24) (West 2002). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board has long held that the condition of "other organic diseases of the nervous system" as explicitly listed under 38 C.F.R. § 3.309(a) includes diagnosis of sensorineural hearing loss. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Finally, service connection for sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year following the Veteran's date of discharge from active service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The presumption is not, however, applicable to periods of ACDUTRA and/or INACDUTRA. VA has specifically defined what is meant by a 'disability' for the purposes of service connection for hearing loss. 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. 38 C.F.R. § 3.385 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court also held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran essentially contends that his current bilateral hearing loss disability, with reported onset in the 1970s or 1980s (see October 2008 VA examination report), is due to traumatic noise exposure to fighter jets while performing the duties of his military occupational specialty (MOS) as an aircraft mechanic and an aircraft maintenance crew chief during his four years of active service and subsequent 30+ years of ACDUTRA/INACDUTRA service in the ANG and Air Force Reserves from which he retired in 1999. In his May 2008 claim for service connection for a bilateral hearing loss disability, the Veteran reported onset of his hearing loss in the 1960's. Service personnel records show that the Veteran had 4 years of active military service wherein his MOS was an aircraft mechanic and he had subsequent service in the Air National Guard and Air Force Reserves with periods of ADCUTRA and INACDUTRA service dating from November 1962 to September 1999 with MOSs in aircraft maintenance and as an aircraft maintenance crew chief. In this regard, in Training Letter 10-35 dated in November 2010, the Director of VA Compensation and Pension Service provided a Duty MOS Noise Exposure Listing which indicates the probability of noise exposure for various occupations. While the Veteran's specific occupation is not listed, similar occupations, to include tactical aircraft maintenance, have a high probability of in-service noise exposure. Thus, excessive military noise exposure during the Veteran's active and ANG service has been conceded by VA. Excessive military noise exposure during the Veteran's service in the ANG/Reserves is further supported by a review of his available service treatment records and examination reports dating from the time of his separation examination from active service in August 1962, through his subsequent service in the ANG/Reserves dating until 1985. Such records are significant for audiological findings dated in May 1970 with notation that auditory acuity was estimated to be poor at that time. Audiological findings dated in May 1971, May 1972, May 1973, and August 1973 show that auditory acuity was estimated to be fair at those times with notation that hearing was "class B" or "class 2." Audiological findings dated in August 1981 show a detrimental shift in hearing acuity with notation that audiometric findings at that time were significant and required audiological follow-up. The last audiometric evaluation available for review during the Veteran's ANG/Reserve service was performed during a September 1985 periodic medical examination, which was indicative of some hearing loss at 4000 Hertz bilaterally with puretone thresholds of 25 decibels. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The earliest finding of a bilateral hearing loss disability for VA purposes is dated in October 2000 at which time puretone thresholds on private audiometric evaluation were in excess of 40 decibels at both 3000 and 4000 Hertz bilaterally. See 38 C.F.R. § 3.385. Subsequent audiometric evaluations performed during VA audiological examinations dating since the Veteran's claim for service connection was received in May 2008 confirm the presence of a currently diagnosed bilateral hearing loss disability for VA purposes. Accordingly, the question remaining to be decided in the present appeal is whether the Veteran's current bilateral hearing loss disability is associated with noise exposure sustained during his active military service or during any subsequent period of ACDUTRA or INACDUTRA during his ANG/Reserve service. In November 2008, the Veteran was afforded a VA audiological examination. He reported bilateral hearing loss, worse in his left ear, which he attributed to his tenure in the military with onset of hearing loss reported to be in the 1970s or 1980s. He reported a history of military noise exposure while working on a flight line doing aircraft maintenance with use of hearing protection during active service from 1958 to 1962. It was noted that he also worked "as a civilian" for the ANG doing the same kind of work for 26 years following his discharge from active service. In an addendum dated 1 day after the November 2008 VA examination, following a review of the claims file and interview and examination of the Veteran, the examiner opined that his current bilateral hearing loss disability is not at least as likely as not related to his "active military duty from 1962 to 1965," which the Board notes are not the correct dates of his active service. In any event, the examiner reasoned that audiometric data on "enlistment examination (Aug 1962)" and on "separation examination (June 1965)," and audiometric data on subsequent audiological examinations dated in October 1974 and August 1978 were all indicative of normal hearing bilaterally from 500 to 6000 Hertz. Thus, she concluded that the aforementioned audiometric findings indicate that the Veteran's "active military duty from 1962 to 1965 did not cause any hearing loss." Correspondence received from the Veteran in January, May, and December 2009 contained the following contentions: (1) his 30+ years of ANG/Reserve service with hazardous military noise exposure had not been considered (see January 2009 Notice of Disagreement); (2) notation that he had worked "as a civilian" for the ANG doing aircraft maintenance for 26 years following discharge from active service is inaccurate, rather, he reported that following his discharge from active service, he served additional subsequent periods of active service and/or ACDUTRA/INACDUTRA during that time (see May 2009 VA Form 9); (3) notation that he dated the onset of his hearing loss in the 1970's or 80' is the result of a miscommunication during the November 2008 VA examination during which he merely referenced that time period to clarify that onset was many years prior as opposed to within the last week/month/year given the examiner's persistent questioning as to the date of onset of his hearing loss (see December 2009 statement), and; (4) any doubt should be resolved in his favor given that his service treatment records are incomplete, hazardous military noise exposure has been conceded by VA, and the complete history of his bilateral hearing loss disability had not been adequately or accurately considered. In a December 2009 statement, the Veteran provided additional details as to the nature of his hazardous noise exposure during active and subsequent ANG/Reserve service. During active service, he reported exposure to hazardous military noise from aircraft turbine engines and turbine engines that powered ground equipment on the flight line where he worked at Luke Air Force Base (AFB) in Arizona. Weather conditions were prime for flying year round such noise exposure was constant every day and night. While he used hearing protection during service, he had to go without it at times because it did not fit properly or caused headaches when worn for too long. Due to the slow, progressive nature of his hearing loss, he was unable to provide a date of onset. He had attempted to obtain his active service treatment records and examination reports, however, he was reportedly told that they are fire-related. While a personal interview was conducted at the time of his out-processing from Luke AFB, he did not remember performance of either a medical or audiological examination at that time. Following his discharge from active service, he reported subsequent service in the ANG/Reserves from 1962 to 1988 with periods of active duty and/or ACDUTRA/INACDUTRA during which he performed flight line maintenance 1 weekend per month and 2 consecutive weeks per year, and he also participated in numerous cross-country staging and NATO exercises over-seas. In June 2010, the Veteran was afforded an additional VA audiological examination to address his ANG/Reserve service. It was noted that he had active military service from 1958 to 1962 and he subsequently worked full-time for the Missouri ANG from 1962 to 1988. During both his active and ANG service, he worked on the flight line as an aircraft mechanic with excessive noise exposure from turbine engines. He was unable or unwilling to provide a date of onset for his bilateral hearing loss. History of civilian recreational noise exposure and any medical, family, and ototoxic drug history of hearing loss were denied. Following a review of the claims file and examination and interview of the Veteran, the examiner opined that it is less likely than not that his current bilateral hearing loss disability is caused by or a result of his military service. Her rationale was that audiometric findings during active service (1958-1962) and while working for the Missouri ANG (1962-1988) were all indicative of normal hearing sensitivity bilaterally at all ratable frequencies, to most notably include on audiological evaluation in September 1985, less than 3 years prior to his retirement from the ANG in May 1988. She stated that it is reasonable to believe that the Veteran's hearing sensitivity was likely still normal on retirement from the ANG given the short time frame between normal audiological evaluation in 1985 and retirement less than 3 years later. She further reasoned that he was not likely exposed to significant noise levels from the time of normal audiological findings in 1985 and his retirement in 1988 given the absence of completion of continued periodic audiograms during that time. In July 2010, a statement received from the Veteran indicated that he is unable to state a date of onset of his bilateral hearing loss because he cannot state when it began due to its slow yet progressive nature. In November 2010, an addendum was obtained from the June 2010 VA examiner to address the Veteran's contention that did not know and therefore is unable or unwilling to provide a date of onset for his hearing loss because of the slow, progressive nature of his hearing loss. The examiner stated that there is no evidence in the claims file to support a finding of the development of hearing loss during the Veteran's military service and the Veteran's contention as to why he cannot identify a date of onset does not change her opinion that it is less likely that not that his current bilateral hearing loss disability was caused by or is a result of his military service. The Board initially remanded this claim in April 2012 when it noted that acoustic trauma sustained during a period of ACDUTRA or INACDUTRA would constitute injury for the purposes of laws and regulations governing service connection; however, an opinion as to whether the Veteran sustained acoustic trauma during any such period of service or whether his current bilateral hearing loss disability is causally related to any period of ACDUTRA or INACDUTRA had not been provided in the etiological opinions previously obtained. The Board also noted that the prior VA examiners had based their opinions that the Veteran's hearing loss is unrelated to his military service, at least in part, on a finding that audiometric findings therein were not reflective of a hearing loss disability as defined under 38 C.F.R. § 3.385. In this regard, the Board observed that while audiometric findings during the Veteran's active and ANG service were not indicative of the presence of a hearing loss disability per VA standards, some degree of hearing loss was noted on numerous audiometric examinations during his ANG service. Thus, the claim was remanded for obtainment of an addendum opinion for the purpose of clarification of the deficiencies noted above. An additional etiological opinion was obtained in June 2012. The audiological examiner concluded that the Veteran's hearing loss is not caused by or a result of his military service. As an exclusive rationale for this opinion, she stated that "development of hearing loss during [the Veteran's period of INACDUTRA service] would not be considered compensable under VA regulations (see Title 38 documentation) as those regulations state that a condition must be developed during ACTIVE duty military service." The Board again remanded the claim for a second time in August 2012 with explanation that while it is true that the mere onset of hearing loss during a period of INACDUTRA would not support an award of service connection under VA regulations, an award of service connection would be supported if such disability was shown to be sustained as a consequence of acoustic trauma sustained a period of INACDUTRA. In essence, as explained in the prior remand, acoustic trauma sustained during a period of ACDUTRA and/or INACDUTRA would constitute an injury as contemplated by VA regulations. Thus, the claim was remanded to afford the Veteran a new VA audiological examination with opinion as to the etiology of his current bilateral hearing loss disability and whether it is causally related to acoustic trauma sustained during his active service or any subsequent period of ACDUTRA or INACDUTRA service. The Veteran underwent an additional VA audiological examination in November 2012. Following review of the claims folder and audiometric examination, the examiner opined that the Veteran's current bilateral hearing loss disability is not at least as likely as not caused by or a result of an event in military service. The examiner reasoned audiometric findings on separation examination from active service in 1962 revealed that the Veteran had normal hearing for VA purposes at that time, and the same was true of audiometric findings on the last audiological evaluation available for review dated in 1985. In this regard, the examiner's rationale was that current research does not support the concept of delayed onset of hearing loss due to noise exposure. The case was again returned to the Board for further appellate consideration in March 2013 when the Board again noted concern that despite explicit requests and instruction in the prior April and August 2012 Remands, the etiological opinions of record contained no acknowledgement or discussion of relevant in-service audiometric findings as noted earlier in this decision (i.e., detrimental shifts in hearing acuity, hearing described as poor/fair/class B/ Class 2, and puretone thresholds reflective of some hearing loss at 4000 Hertz on more than once occasion during his ANG service), which is potentially favorable evidence in support of the claim. Thus, the claim was again remanded for a third time in March 2013 for obtainment of an etiological opinion that adequately addresses the Veteran's contentions and his complete military service history and relevant audiometric findings therein. An additional audiological opinion was obtained in April 2013. Per her review of all pertinent records associated with the claims file and that were asked to be reviewed, the examiner indicated that her opinion agrees with opinions of prior audiological examiners in that the Veteran's current bilateral hearing loss disability is not at least as likely as not related to his military service and noise exposure therein. Her rationale was that there are numerous possible etiologies of the Veteran's current bilateral hearing loss disability, and even with a complete, detailed record of his medical and work history dating since birth, it is unlikely that one would be able to identify the etiology of such with absolute certainty. She stated that to do so would be resorting to total speculation. Thus, she did not attempt to identify the etiology of the Veteran's current bilateral hearing loss disability. On review of the evidence of record, the Board finds that the competent and credible evidence of record is in relative equipoise as to whether the Veteran's current bilateral hearing loss disability is related to his excessive military noise exposure during active and Reserve/ANG service with periods of ACDUTRA/INACDUTRA. At the outset, the Board notes that the evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board acknowledges that the opinions obtained pertaining to the likely etiology of the Veteran's current bilateral hearing loss disability all seem to weigh against the claim. Here, however, the Board finds that these opinions contain significant shortcomings. Specifically, none address or discuss in detail the potentially favorable audiological findings documented during the Veteran's ANG service or their significance or lack thereof. They also do not adequately discuss or consider all potential avenues for establishing service connection for a bilateral hearing loss disability as noted above and outlined in this decision. Further, with the exception of the April 2013 examiner, despite the Court's determination in Hensley most of the opinions of record erroneously state that audiometric findings during all periods of the Veteran's military service are within normal limits. The Board has attempted on at least three occasions to obtain clarification as to the above insufficiencies and concerns in the etiological opinions of record. Despite obtaining opinions from multiple audiologists, however, the above noted concerns have yet to be adequately and fully addressed by the opinions received. This is likely due, at least in part, to the complex history of service and non service-related hazardous noise exposure and/or the lack of complete service records available for review. On the other hand, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. As noted, the Veteran is competent to describe the circumstances surrounding his noise exposure during periods of his active and ACDUTRA/INACDUTRA service with difficulty hearing for many years prior to his separation from ANG service in 1988. This comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence). His contentions are supported by credible, competent, and sometimes frequent audiological findings during ANG service of hearing acuity described in terms such as poor or fair and requiring follow-up, notation of a detrimental shift in hearing acuity, and intermittent yet frequent audiometric findings reflective of at least some hearing loss at 3000 and 4000 Hertz, which the Board notes is consistent with post-service audiometric findings with hearing loss in the higher frequencies. The Board also finds that the Veteran's assertions regarding a continuity of symptomatology since many years prior to his discharge from ANG service to be credible. The Board is cognizant that he worked as a civilian for the ANG throughout many of the years and that such work may have involved additional excessive noise exposure. Nevertheless, after a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current bilateral hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma. Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise. Accordingly, the benefit-of-the-doubt rule applies and service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs