Citation Nr: 1320527 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-16 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to January 1976 with the United States Marine Corp and from October 1983 to December 1993 with the United States Air Force. This matter comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Cleveland, Ohio "Tiger Team" Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was subsequently transferred to the RO in Montgomery, Alabama. The issues of entitlement to service connection for tinnitus and posttraumatic stress disorder were also on appeal. However, the RO granted these issues in a May 2009 rating decision. As this was a grant of the full benefits sought on appeal, these matters are no longer in appellate status. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in favor of the Veteran, bilateral hearing loss is etiologically related to his in-service noise exposure. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for bilateral hearing loss herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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, 1131; 38 C.F.R. § 3.303(a). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. 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. The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a), as in the instant case, and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that 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 Board acknowledges that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the United States Court of Appeals for Veterans Claims (Court): [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has reported military noise exposure due to his military occupational specialty as an aircraft radio operator during combat missions in Vietnam. He further asserted military noise exposure consisting of artillery, including guns and explosives, radio equipment and jet engines on the flight line. His DD 214 for the Marine Corps shows that his military occupational specialty was radio operator. It also documents that the Veteran was the recipient of numerous awards and medals for his service in Vietnam. His DD 214 for the Air Force lists his military occupational specialties as vehicle maintenance, vehicle and body maintenance craftsman and traffic management. On examination performed for induction purposes in March 1961, the Veteran's ears were clinically evaluated as normal. Audiometric testing was not performed; however, under standard testing at that time, the Veteran received a 15/15 on the whispered voice test for both ears. The Veteran underwent numerous periodic audiologic evaluations while in service. Significantly, his first audiometric test was performed in October 1964, which showed that pure tone thresholds, in decibels, were as follows (converted to ISO (ANSI) units as shown in parentheses): HERTZ 500 1000 2000 3000 4000 Right 5 (20) 0 (10) 5 (15) 0 (10) 10 (15) Left 5 (20) 0 (10) 0 (10) -5 (5) 0 (5) The Veteran underwent another periodic examination in February 1990. Pure tone thresholds, in decibels, at that time were as follows: HERTZ 500 1000 2000 3000 4000 Right 5 0 0 0 15 Left 0 0 0 10 30 These tests, as well as the remaining hearing tests, showed normal hearing for VA purposes and, in his contemporaneous medical histories, the Veteran expressly denied any hearing loss. Further, a retirement examination does not appear to be of record. Nevertheless, in sum, service treatment records are silent with respect to any findings of or complaints of hearing loss. However, the threshold readings do document an upward threshold shift at 4000 Hertz in the left ear from the October 1964 service examination to the February 1990 examination. Moreover, although not considered to determine hearing loss disability for VA purposes, there was also a significant threshold shift at 6000 Hertz from 15 (converted to ISO) to 25 decibels in the right ear and from 10 (converted to ISO) to 30 decibels in the left ear. After service, the first medical evidence of record concerning hearing problems is a June 2002 private record. The Veteran had noticed more difficulty in understanding speech. It was observed that audiometry results revealed precipitously sloping, normal to moderate, high frequency sensorineural hearing loss, bilaterally. The left ear was poorer than the right by about 10 Db in 3000-4000 Hertz range. No etiological opinion was provided. Subsequently, the Veteran underwent another private hearing evaluation in October 2005. The Veteran reported difficulty hearing in both ears. Audiometry results revealed normal hearing in the right ear through 3000 Hertz, falling to mild sensorineural hearing loss from 4000 to 8000 Hertz. The left ear had normal hearing through 2000 Hertz, falling to mild to moderate sensorineural hearing loss from 3000 to 8000 Hertz. Again, no etiological opinion was provided. In June 2006, the Veteran underwent a VA audiological examination. The Veteran reported military noise exposure consisting of communications equipment, the flight line, and rockets and explosions. He also reported being exposed to power tools and large trucks. He further described an incident where a bazooka was fired prematurely. Civilian occupation included using power tools and truck driving with the use of hearing protection. Recreational activities also included power tools and lawn equipment, with and without hearing protection. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 5 10 10 15 40 Left 5 5 15 3 40 Speech recognition testing revealed a speech recognition ability of 96 percent in both ears. The examiner diagnosed mild high frequency sensorineural hearing loss, bilaterally. The examiner determined that, since the Veteran did not report difficulty with his hearing until five years ago and his first hearing test since the military was in 2001, the examiner felt that the Veteran's hearing loss, which was not noticed by the Veteran until five years ago, was less likely than not caused by or a result of military noise exposure. The Veteran underwent another VA audiological examination in April 2007. The Veteran again reported military noise exposure due to his time on cargo planes as part of the air crew. He reported that he wore no hearing protection in service. The examiner observed that the Veteran had significant noise exposure in the military due artillery and aircraft noise. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 10 10 15 45 Left 10 10 20 45 50 Speech recognition testing revealed a speech recognition ability of 88 percent in both ears. The examiner diagnosed mild high frequency sensorineural hearing loss, bilaterally. The examiner found no reason to disagree with the prior VA opinion and, therefore, it was her opinion that it was less likely than not that hearing loss was related to or caused by military noise exposure. Subsequently, a June 2008 private reported observed that the Veteran had a prior otologic evaluation that demonstrated high frequency sensorineural hearing loss with a pattern consistent with noise exposure and/or aging. In February 2009, the Veteran underwent another VA examination. The examiner reviewed the claims file. The Veteran reported hearing loss since he left service. Again, it was observed that military noise exposure was significant for some artillery and aircraft noise. At this time, the Veteran denied any other occupational or recreational noise exposure. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 10 15 25 40 Left 10 10 15 50 60 Speech recognition testing revealed a speech recognition ability of 80 percent in the right ear and 88 percent in the left ear. The examiner found normal hearing that dropped to moderate noise induced hearing loss at 3000 Hertz in both ears. The examiner observed that the Veteran's hearing loss had the configuration suggesting it was noise induced. The examiner observed that the audiogram done in 1990 revealed a slight decrease in hearing sensitivity in the left ear at 4000 Hertz and in the right ear at 6000 Hertz. In a separate February 2009 opinion, another examiner was asked to provide an opinion as to whether the Veteran's tinnitus was related to cranial neuropathy. The diagnosis was moderate high frequency bilateral sensorineural hearing loss. The examiner indicated that given that the onset of tinnitus in relation to the noisy environment that he worked in during the military and audiogram findings today of normal hearing in low frequencies with only high-frequency sensory hearing loss, the examiner found that the Veteran's tinnitus was not caused by cranial neuropathy. Follow up VA treatment records showed that the Veteran was seen for hearing aid evaluation, but provide no further evidence of etiology. As detailed, on audiological examinations in June 2006, April 2007 and February 2009, testing revealed impaired hearing, per § 3.385, as the auditory thresholds at certain frequencies were greater than 40 decibels in both ears, and speech discrimination scores at the two most recent VA examinations were less than 94 percent in both ears. Thus, the Board accepts that the medical evidence of record shows that the Veteran meets the requirements of 38 C.F.R. § 3.385 for bilateral hearing loss. Further, based on the totality of evidence of record, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. Importantly, the record shows that the Veteran was exposed to significant noise during his military service. Moreover, as observed at the most recent VA examination, there was an upward threshold shift in service. Although the June 2006 and April 2007 VA examiners found that the Veteran's hearing loss was not related to service, these examiners failed to provide an adequate rationale for their opinions. The April 2007 VA examiner simply relied on the June 2006 report. Moreover, the June 2006 examiner primarily relied on the fact that the Veteran had normal hearing in service. However, as observed above, the finding of normal hearing at discharge is not an adequate basis for denying a claim for service, especially given the evidence of noise exposure and the upward threshold shift in the instant case. See Hensley. The examiner in this instance failed to address the upward threshold shift documented in service. Given these deficiencies, these examinations report are inadequate and, in turn, have minimal probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Importantly, the February 2009 VA examiner clearly determined that the Veteran's hearing loss was noise induced and again he observed the upward threshold shift in service. Although the examiner did not clearly opine that the Veteran's hearing loss was related to service, he did observe significant military noise exposure as well as attributed the Veteran's hearing loss to noise exposure. Moreover, a previous private opinion also observed that the Veteran's hearing loss was either due to noise exposure and/or age. Given the significant noise exposure in service, these opinions support the Veteran's claim that his hearing loss is related to such exposure. The Board also finds it significant that the Veteran has been awarded service connection for tinnitus based on his in-service noise exposure. Although hearing loss and tinnitus are separate disabilities, medical treatises indicate that the cause of tinnitus can usually be determined by finding the cause of the associated hearing loss. See, e.g., Harrison's Principles of Internal Medicine 178 (Anthony S. Fauci et al. eds., 14th ed. 1998). Further, in statements of record, the Veteran reported that he had hearing problems in service that have continued to the present. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Thus, there is evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In conclusion, the evidence shows significant noise exposure in service with an upward threshold shift, a current diagnosis of bilateral hearing loss for VA purposes, and medical and lay evidence showing a link between the Veteran's current hearing loss to his in-service noise exposure. In sum, based on the analysis above, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss disability is warranted. See 38 U.S.C.A. § 5107(b). The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert, supra. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs