Citation Nr: 1322399	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  09-35 750	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2000 to November 2004.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The Board remanded the case for further development in October 2012.  That development was completed, and the case has since been returned to the Board for appellate review. 

A review of the documents in the Virtual VA electronic claims file associated with the claim reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The issue of entitlement to service connection for residuals of a middle finger laceration has been raised by the record.  Specifically, while a review of the file indicates that notice and a September 2008 VA examination were provided for this claim (filed in February 2008), the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

Bilateral hearing loss disability is related to in-service combat noise exposure.


CONCLUSION OF LAW

Bilateral hearing loss disability was incurred in service.  38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Given the fully favorable disposition of the claim on appeal, the Board finds that that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Legal Principles and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

Service connection may be granted for any disease initially 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).

For the showing of 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.  If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include organic disease of the nervous system (sensorineural hearing loss), a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory 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.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his current bilateral hearing loss is attributable to noise exposure during service, to include such exposure during combat operations.

At the outset, the Board notes that the Veteran has a hearing disability for VA purposes under 38 C.F.R. § 3.385, as shown on the April 2013 VA examination.  The examination report shows that speech recognition scores using the Maryland CNC test were less than 94 percent in each ear (88 percent right ear; 84 percent left ear).  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (requirement of a current disability satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim).  Moreover, a March 2008 private audiometric evaluation performed through the Veteran's private provider indicates that the Veteran had disabling hearing loss for VA purposes at that time.  In this regard, while the puretone threshold measurements in the resulting report are on a chart that was not transcribed, the test results clearly indicate that the auditory threshold in at least three frequencies in each ear between 500 and 4000 Hertz was 26 decibels or greater beginning at 2000 Hertz.  Speech recognition scores were full, but measured using the W-22 word list, rather than the Maryland CNC test.

In regard to in-service acoustic trauma, the Veteran indicated in written statements and during examination that he was exposed to noise due to combat conditions in Iraq, to include rocket-propelled grenades, machine guns, and mortar rounds.  The Veteran's DD-214 shows that he is in receipt of the Combat Action Ribbon, as well as his activation in support of multiple operations in Iraq.  See VA Adjudication Manual Rewrite, M21-1MR, Part IV, Subpart ii, 1.D.13.e (individual combat decorations for which VA will presume combat with the enemy).  The Board accordingly finds that the provisions of 38 U.S.C.A. § 1154(b) are for application in this case, and the Veteran's statements regarding acoustic trauma from weapon noise are credible, competent, and consistent with the circumstances of his combat service and establish that he indeed suffered acoustic trauma in service.

The record also reflects the Veteran's report that he has experienced difficulty hearing since service, while acknowledging that his post-deployment hearing test yielded normal results.  See, e.g., February 2008 VA treatment record.  The Board also finds this testimony competent and credible.  Therefore, the only remaining consideration before the Board is whether the Veteran's current bilateral hearing loss disability is related to his in-service noise exposure.  See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected.").
A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis of hearing loss.

A review of the post-service records shows that the earliest documented evidence of the Veteran's hearing loss disability for VA compensation purposes is the March 2008 private audiometric evaluation from the Veteran's provider discussed above.  At that time, the Veteran reported possible subtle hearing loss from noise exposure in service.  Following physical examination, the provider diagnosed slight sensorineural, high-frequency deficit consistent with noise exposure history.  In a corresponding written submission, the provider indicated that it was more likely than not that the Veteran's in-service noise exposure, the only significant acoustic insult in his life, was the primary cause of his current symptoms of hearing loss.  In so finding, the provider noted that outer hair cell loss due to significant noise exposure could produce deterioration of hearing in later years after exposure; test results recorded that day indicated such outer hair cell loss.

The Veteran was afforded a VA examination in July 2008, at which time he reported in-service noise exposure from the instruments of combat; he also complained of difficulty hearing since service.  Audiometric testing showed that he did not have the requisite puretone decibel loss or speech discrimination scores to establish a hearing loss disability for VA purposes under 38 C.F.R. § 3.385.

In response to the Board's October 2012 remand, the Veteran was afforded a VA examination in April 2013 by the same VA examiner from July 2008.  As discussed above, speech recognition scores were 88 percent in the right ear and 84 percent in the left ear, with normal hearing on puretone threshold measurement.  The VA examiner opined that it was not at least as likely as not that the Veteran's hearing loss was caused by or a result of service.  In so finding, the examiner noted normal hearing at entrance and separation, with no significant threshold shift during service, as well as other post-service testing showing word understanding to be excellent in both ears.  In addition, the examiner cited studies showing that word recognition scores similar to the Veteran's were good (appearing to suggest that such scores were not disabling), as well as the lack of scientific support for the development of noise-induced hearing loss long after exposure.
The Veteran is certainly competent to report as to the observable symptoms he experiences, such as hearing difficulty, and their history.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  To the extent the Veteran alleges an in-service onset of symptomatology, the Veteran received the Combat Action Ribbon, and there is no rational basis to refute the provisions of 38 U.S.C.A. § 1154(b) as to a report of in-service hearing loss.  Furthermore, the Board finds the Veteran's statements concerning his in-service noise exposure and gradual onset of hearing loss after service, to the extent such was alleged, credible.

The Board also notes that the absence of in-service evidence of hearing loss disability is not fatal to the Veteran's claim.  38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  Hensley, 5 Vet. App. at 159.

With regard to the medical evidence of record, there are two competent opinions addressing the etiology of the Veteran's bilateral hearing loss disability.  Each of the opinions is based on the same reported in-service and post-service noise exposure history.

In evaluating the individual opinions, the March 2008 private opinion attributes the Veteran's bilateral hearing loss disability to in-service noise exposure, specifying that such exposure was the primary cause of his current hearing loss symptoms.  In addition, the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008).  In this case, the private provider was informed of the relevant facts, as they are noted in the opinion.  The Board finds that this probative opinion attributes primary causation of hearing loss found on examination to in-service noise exposure and is therefore supportive of the Veteran's claim.

The July 2008 VA examination did not show disabling hearing loss for VA purposes, and an opinion as to etiology was not provided.  Thereafter, the VA examiner in the April 2013 opinion determined both that the Veteran had normal hearing based on puretone threshold measurements and that his current speech recognition scores, while indicating disabling hearing loss for VA purposes, were not attributable to in-service noise exposure, a finding which weighs against the claim.  The examiner based this opinion in part on the basis that the Veteran's hearing did not change in service and was within normal limits at separation.  In addition, the examiner stated that the Veteran's word recognition had been excellent post-service in other tests, with current results considered good under other studies, as well as the lack of scientific support for the development of noise-induced hearing loss long after exposure.  However, this rationale does not warrant the conclusion of a lack of nexus under both general service connection principles and those applicable to hearing loss claims, nor does it fully address the question of etiology in regard to the Veteran's significant in-service noise exposure and lack thereof after service.  See 38 C.F.R. § 3.303(d) (service connection is warranted for a disease first diagnosed after service when the evidence reflects it is related to service); Hensley, 5 Vet. App. at 159; Ledford, 3 Vet. App. at 89.  Consequently, the probative value of the opinion is diminished.  We also note that the examiner made a determination that the appellant had normal hearing, based upon other medical authority.  However, that conclusion is inconsistent with a legal determination made by the Secretary.  See 38 C.F.R. § 3.385.  Here, the VA opinion is fatally flawed and is accorded lessened probative value.

Considering the record in sum, the Board finds that the lay and medical evidence in this case collectively weighs in favor of the Veteran's claim.  As such, the Board finds that service connection for bilateral hearing loss disability is warranted.



ORDER

Entitlement to service connection for bilateral hearing loss disability is granted.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs