Citation Nr: 1321745	
Decision Date: 07/08/13    Archive Date: 07/18/13

DOCKET NO.  07-38 281	)	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

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran had a period of active duty for training (ACDUTRA) from April 1967 to August 1967 and on subsequent National Guard service.  

This case was previously before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The case was remanded by the Board for additional development in July 2011 and is now ready for appellate review of the issue of entitlement to service connection for bilateral hearing loss.  An additional claim remanded by the Board in July 2011, entitlement to service connection for tinnitus, was granted by an August 2012 rating decision pursuant to development requested in the Board remand.  As such, the only issue remaining on appeal is as listed on the Title Page.  


FINDINGS OF FACT

1.  The nature of the Veteran's duties in service is consistent with exposure to acoustic trauma and current bilateral hearing loss disability as defined by regulation is demonstrated.  

2.  The Veteran has credibly and competently described continuity of hearing loss from service to the present time.

3.  The probative weight of the positive and negative medical opinions of record as to whether current bilateral hearing loss disability is the result of acoustic trauma during service is in relative balance.  



CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.)  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all 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: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 U.S.C.A. § 101(2), (24) (West 2002); 38 C.F.R. § 3.6(a) (2012). 

ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes.  38 C.F.R. § 3.6(c). INACDUTRA includes duty (other than full-time duty) prescribed for Reserves.  38 C.F.R. § 3.6(d) (2012). 

Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). 

With chronic disease shown as such in service 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 attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  

The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as sensorineural hearing loss as an organic disease of the nervous system) listed under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307  (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

To establish the existence of a current hearing loss disability for which service connection may be granted, at least one of the threshold pure tone levels at 500, 1000, 2000, 3000, or 4000 Hertz, must measure 40 decibels or greater; at least three of these five threshold levels must measure more than 25 decibels; or speech recognition using the Maryland CNC test must be lower than 94 percent.  38 C.F.R. § 3.385.  However, the Board notes that service department audiometric readings prior to October 31, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  Current bilateral loss disability as defined by 38 C.F.R. § 3.385 is demonstrated, to include by way of VA audiometric testing results obtained in March 2006 and December 2011. 

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:

[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).

The Veteran asserts that his current hearing loss disability is the result of acoustic trauma sustained during his military service in an artillery unit.  See eg., August 2005 VA Form 21-526 and January 2007 notice of disagreement.  During the Veteran's period of ACDUTRA from April 1967 to August 1967, the Veteran claimed exposure to acoustic trauma.  The Board notes that the Veteran's DD Form 214 shows that under block 24, decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized there were two entries, sharpshooter and M-14 Rifle.  Given such notation, exposure to acoustic trauma during service will be presumed for the purposes of this decision.  

Service treatment records associated with the claims file revealed that the Veteran was afforded a clinical evaluation and physical examination in April 1967 prior to entering service.  The Veteran provided a medical history in which he specifically denied having hearing problems.  Audiometric readings at entrance, with conversion to ISO units, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
NR
5
LEFT
10
5
5
NR
10


Audiometric readings at the July 1967 separation examination, with conversion to ISO units, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
20
NR
25
LEFT
25
20
20
NR
25

The Veteran did not report having any problems with hearing loss on a medical history obtained in conjunction with the July 1967 separation examination.  
 
The in-service audiometric findings do not reflect hearing loss disability as defined by 38 C.F.R. § 3.385; however, as described by the VA audiologist in an April 2012 VA opinion, comparing the audiometric findings from entrance to active service from those collected at separation from such duty set forth above, "a worsening significant threshold shift was shown in both ears."  This examiner, as clarified further in a July 2012 addendum opinion, found that on the basis of this in-service worsening of hearing thresholds, tinnitus was at least as likely as not related to or caused by the Veteran's military noise exposure.  As previously indicated, service  connection for tinnitus was ultimately granted by an August 2012 rating decision.  

With respect to whether the Veteran's hearing loss was the result of service, the examiner's conclusion in her April 2012 VA opinion, and July 2012 addendum, was that it was not at least as likely as not that the Veteran's current hearing loss was the result of service.  The rationale for this opinion was the fact that hearing was normal upon separation from active duty and that an Institute of Medicine Report on military noise exposure concluded that noise induced hearing occurs immediately, and that there is no scientific basis for delayed onset noise induced hearing loss.  The same negative conclusion with respect to a nexus between hearing loss in the right ear and service was reached by a VA audiologist following a March 2006 VA examination, who noted that with respect to the hearing loss in the left ear, which involved Meniere's disease for which surgery had been performed, an opinion should be obtained from an Ear, Nose, and Throat (ENT) physician.  [The July 2011 Board remand instructions for the examination requested therein referenced the March 2006 examiner's comments about the need for an opinion by an ENT physician, but the examiner who completed the April 2012 opinion and July 2012 addendum identified herself only as an audiologist.] 

Weighing against the negative medical opinions above are two positive opinions linking hearing loss to in-service acoustic trauma rendered by a private physician in February 2012 and another private physician in April 2012.  The physician who completed the February 2012 opinion noted that the Veteran had been known to him for 30 years, and since that time had suffered from bilateral deafness related to an injury that occurred on military duty.  With respect to the April 2012 private opinion, rendered by a physician who identified himself as an otolaryngologist, he found it to be a "certainty" that the Veteran's hearing loss was the result of exposure to artillery fire during service.  As support for this conclusion, he noted the "temporary threshold shift," apparently a reference to the worsening hearing thresholds during service, and remarked that "the records will also confirm that [the Veteran] . . . began to suffer . . . either immediately or over a period of time [from] slowly progressive sensor[i]neural hearing loss."  

While the post-service private medical treatment records confirm the Veteran's treatment for hearing loss from May 1997, the Veteran has reported continuous problems with hearing loss from service to the present time, and corroborating statements as to the Veteran having long-standing problems with hearing loss have been submitted by his wife and supervisor in April 2006 and August 2012.  The Veteran is competent to assert that he has had problems with hearing loss since service, and the Board finds these assertions to be credible given the nature of the Veteran's ACDUTRA service during which exposure to acoustic trauma is presumed, the worsening thresholds shown during service, and the supporting statements from his wife and supervisor.  Davidson, Hensley, supra. 

With respect to the conflicting medical opinions, the adjudication of the Board includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another.  See Cathell v. Brown, 8 Vet. App. 539, 543 (1996); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Guerrieri v. Brown, 4 Vet. App. 467 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993).  Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the claimant's history, and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Further, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  

Given the qualifications and training of the examiners who rendered the positive opinions rendered above, both physicians, with one identifying himself as an otolaryngologist, in contrast to those of the audiologists who rendered the negative opinions; the clinical evidence of some deterioration in hearing at separation when compared with the audiometric findings at entrance in light of the Hensley decision; and the fact that the negative opinions relied on, as perceived by them, the absence of evidence of in-service hearing loss, and did not reflect consideration of the Veteran's competent and credible history of continuity of hearing problems from service to the present time; the Board concludes that, at a minimum, the probative weight of the positive and negative medical opinions as to whether the Veteran's currently bilateral hearing loss disability is the result of service is in relative balance.  Cathell, Owens, supra; Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion).  Accordingly and as unless the preponderance of the evidence is against a claim, it cannot be denied, service connection for bilateral hearing loss is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations with respect to the claim for service connection for hearing loss since there is no detriment to the Veteran with respect to this claim as a result of any VCAA deficiency in view of the fact that the full benefits sought by the Veteran in connection with this claim is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By letter dated in March 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date.  He will have the opportunity to initiate an appeal from these "downstream" issues if he 

disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection herein. 


ORDER

Entitlement to service connection for bilateral hearing loss is granted.  


___________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs