Citation Nr: 1321079	
Decision Date: 07/01/13    Archive Date: 07/12/13

DOCKET NO.  11-08 366	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

T. Wishard, Counsel


INTRODUCTION

The Veteran had active military service from April 1969 to April 1971.

This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri.  


FINDING OF FACT

The Veteran has bilateral hearing loss that is as likely as not related to his active duty.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, he has bilateral hearing loss that was incurred in his military service.  38 U.S.C.A. §§ 1101, 1110, 1154, (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  With regards to the issue of entitlement to service connection for bilateral hearing loss, the Board has considered this legislation but finds that, given the favorable action taken herein with regard to that issue, no further discussion of these VCAA requirements is required with respect to this matter.  Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).


Legal Criteria

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of 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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013).  Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002). 

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.  

The Veteran avers that he has a bilateral hearing loss disability as a result of active service.  An essential element of a claim for service connection is evidence of a current disability.  A June 2010 VA examination report is of record.  The report revealed that pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
25
45
LEFT
10
5
20
30
60

The Veteran's speech recognition score was 98 percent for the right ear and 96 percent for the left ear.  Based on the foregoing, the Veteran does have a current bilateral hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  

A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease.  The Veteran's DD 214 reflects that his primary military occupational specialty was as a light weapons infantryman.  It also reflects that he was awarded the combat infantryman's badge, and that he had service in Vietnam for one year during wartime.  The Board finds that exposure to acoustic trauma in service is consistent with the circumstances of the Veteran's service as a light weapons infantryman in Vietnam.  38 U.S.C.A. § 1154(a) (West 2002).  

The Veteran's STRs are negative for any complaints of, or treatment for, hearing loss.  The Veteran's February 1969 report of medical examination for enlistment purposes revealed that pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
-5
--
5
LEFT
15
5
-5
--
5


The Veteran's February 1971 report of medical examination for separation purposes revealed that pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
5
--
0
LEFT
0
5
10
--
5

In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  

A third requirement for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury, or in some cases, credible evidence of continuity of symptomatology since service.  

The Veteran was afforded a VA examination in June 2010.  He reported his in-service noise exposure from combat.  The examiner specifically noted that there has been no significant civilian noise exposure.  Hearing examination revealed bilateral hearing loss as defined by VA in accordance with 38 C.F.R. § 3.385.  The examiner opined that Veteran's bilateral hearing loss was less likely as not caused by or a result of in-service acoustic trauma based solely on the fact that the Veteran's entrance and discharge examinations showed hearing within normal limits.

Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is warranted.  Initially, as discussed above, the Board finds that the Veteran did incur in-service acoustic trauma.  Furthermore, the evidence shows that the Veteran has a current bilateral hearing loss disability as defined by VA.  The Board also finds that the evidence supports a finding of a nexus between his in-service acoustic trauma and his current bilateral hearing loss disability.

It can be clearly inferred from the opinions of the June 2010 audiologist that he apparently believed, in contravention of Hensley, that hearing loss could not result from in-service acoustic trauma where hearing at separation was normal.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993) held that veterans who exit service with normal hearing are not precluded from establishing service connection if they demonstrate a nexus between a current hearing loss disability and service. 

The same audiologist specifically noted that "tinnitus can result after exposure to the hazardous military noise [to which] the veteran was exposed" (emphasis added).  Significantly, service connection for tinnitus as due to in-service acoustic trauma has been granted based on the June 2010 audiologist's opinion.
  
The Board observes that "an associated hearing loss is usually present" with tinnitus.  See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id.  In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss."  The MERCK Manual, Section 7, Ch. 85, Inner Ear.

Therefore, because the Veteran is service connected for tinnitus resulting from in-service acoustic trauma, the evidence supports a finding that his sensorineural or noise-induced hearing loss is also the result of in-service acoustic trauma.  In reaching this conclusion, the Board acknowledges the negative nexus opinion from the June 2010 VA examiner.  However, the Board finds that his opinion lacks probative value as it violates Hensley.  The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss.  Hensley at 160.  The examiner's negative nexus opinion regarding the Veteran's hearing loss was premised upon the absence of bilateral hearing loss being shown at discharge and thus lacks probative value.

Furthermore, the examiner failed to address the fact that the Veteran's left and right ears showed some degree of decreased audio acuity at 2000 Hertz at discharge from service and the left ear showed some degree of decreased audio acuity at 4000 Hertz at discharge from service.  Thus, the Veteran's discharge examination compared to his entrance examination showed a threshold shift.  Therefore, the evidence supports a finding that the Veteran did incur bilateral hearing loss in service.

Thus, in considering the in-service acoustic trauma, the above-noted provisions from The MERCK Manual, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has bilateral hearing loss that was incurred in service.  The evidence is in favor of the grant of service connection for bilateral hearing loss.  Service connection for bilateral hearing loss is, therefore, granted.  38 U.S.C.A. § 5107.



ORDER

Entitlement to service connection for bilateral hearing loss is granted.




______________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs