Citation Nr: 1322963	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  07-28 622	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel



INTRODUCTION

The Veteran served on active duty from July 1965 to June 1969.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO).  This claim was previously remanded by the Board in February 2011 and November 2011 for additional development.  


FINDING OF FACT

Affording the Veteran the benefit of the doubt, his current bilateral hearing loss disability was incurred in service.  


CONCLUSION OF LAW

Resolving all doubt in favor of the Veteran, the criteria for the establishment of service connection for bilateral hearing loss has been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012).  The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim.  See generally VCAA.  

In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Pertinent Laws and Regulations

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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In addition, service connection may 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).

In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. § 1113.

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 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).  However, the Court of Appeals for Veterans Claims (Court) cited a 1988 medical treatise that stated that the threshold for normal hearing is from 0 to 20 dB, and that higher threshold levels indicate some degree of hearing loss.  Hensley  v. Brown, 5 Vet. App. 155, 157 (1993).  A recent edition of this treatise retains the same definition.  See Current Medical Diagnosis and Treatment, 162, Stephen J. McPhee et.al. eds., 47th Ed. (2008).

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012).  See Baldwin v. West, 13 Vet. App. 1 (1999).  When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).  If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable.  Ortiz, 274 F.3d at 1365.

With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v. West, 13 Vet. App. 31, 35 (1999).

Analysis

The Veteran contends that he experienced bilateral hearing loss caused by exposure to high noise levels in service and that he had experienced diminished hearing since his separation from the military in 1969.  See VA form 9, dated July 2009.  

The Veteran's DD form 214 and service records demonstrate that he served as a rifleman with a related civilian occupation of proof technician of small arms.  Service personnel records reflect he served in the Republic of Vietnam during the Vietnam War.  These records also demonstrate duties and circumstances consistent with noise exposure from artillery fire.  Therefore, the Board concludes that the Veteran was exposed to high levels of noise in service.

Service treatment records reflect no findings related to hearing loss during the Veteran's active service.  The June 1965 entrance exam demonstrated normal findings of the ears and drums upon clinical evaluation and the Veteran reported no problems with the ears in the June 1965 Report of Medical History.  Audiometric testing in the entrance examination revealed that the hearing threshold levels in decibels were as follows:




HERTZ









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

Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO/ANSI) units.  Thus, the results of the audiometric testing at entrance, converted from ASA to ISO/ANSI units, are as follows.




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
10
10
5
LEFT
15
15
10
10
5

Upon separation from active service, the May 1969 separation examination revealed normal findings of the ears and drums upon clinical evaluation and whisper voice tests revealed a 15 out of 15 was recorded in both whispered and spoken voice in the left ear only.  Findings in the right ear were not recorded.  

VA outpatient treatment reports reflect that the Veteran initially complained of decreased hearing in April 2008, at which time he was diagnosed with hearing loss and referred to the audiology department.  A May 2008 VA audiology consultation and hearing aid evaluation reflects that the Veteran reported a history of military noise exposure for 4 years as he served as a rifleman in Vietnam.  Word recognition scores were at 100 percent in both ears and pure tone testing results were summarized to reveal hearing thresholds within normal limits at 250 to 3000 Hertz with severe sensorineural hearing loss at 4000 to 8000 Hertz, bilaterally.  

In a December 2008 VA audiology examination, the Veteran reported problems with understanding conversations in the presence of background noise and on the television.  He also reported a history of military noise exposure while serving as a rifleman and working with explosives in Vietnam without hearing protection.  He denied occupational noise exposure both prior to and following his active service and reported the occasional usage of power tools and lawnmower use without hearing protection following his service.  Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
10
10
10
25
85
LEFT
10
10
10
20
85

Average puretone threshold values were 32.5 in the right ear and 31.25 in the left ear.  Maryland CNC speech recognition scores were 96 and 92 percent in the right and left ears respectively.  Tympanograms revealed findings of type As tympanogram in the right ear and type A tympanogram in the left ear.  The results of all diagnostic and clinical tests revealed thresholds to be within normal limits from 250 to 3000 Hertz and severe sensorineural hearing loss from 4000 to 8000 Hertz, bilaterally.  The Veteran was diagnosed with normal to severe bilateral sensorineural hearing loss.  The examiner found that she could not resolve the issue of the Veteran's current hearing loss without resorting to mere speculation.  She explained that his service records revealed only whispered and spoken voice testing on his separation audiogram and that these tests were insensitive to high frequency sensorineural hearing loss, the type of hearing loss most commonly associated with noise exposure; and thus was not reliable evidence of normal hearing.  

In a May 2011 VA audiology examination, the Veteran reported problems with bilateral hearing loss and a history of military noise exposure from C-4 explosives, grenades, rifles, helicopters and firing ranges.  He denied occupational or recreational noise exposure.  Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
10
10
5
25
85
LEFT
10
10
5
15
85

Average puretone threshold values were 31.25 in the right ear and 28.75 in the left ear.  Maryland CNC speech recognition scores were 100 percent in both the right and left ears.  Tympanometry testing revealed slightly stiff tympanograms at normal pressure bilaterally.  The Veteran's hearing loss was categorized as bilateral high frequency sensorineural hearing loss.  Results of all diagnostic and clinical tests revealed normal hearing through 3000 Hertz, sloping to a severe high frequency sensorineural hearing loss from 4000 to 8000 Hertz with excellent word recognition ability bilaterally.  The Veteran was diagnosed with normal to severe bilateral sensorineural hearing loss.  The examiner found that he could not resolve the issue of whether the Veteran's current hearing loss was caused by or a result of his military noise exposure without resorting to mere speculation.  He noted that, unfortunately, the exit screening was a whisper voice test and that whisper voice tests were crude screenings, which did not offer frequency specific data that could be compared to the Veteran's entrance examination.  He also noted that a 15 out of 15 result on a whisper voice test did not offer an answer to whether the Veteran did or did not have hearing loss at separation.  The examiner reasoned that if the Veteran did experience a drop in his hearing in the military, one would think that he would have claimed it on his 1970 claim, which he did not.  

In a December 2011 VA audiology examination, audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
10
15
20
40
85
LEFT
15
15
15
20
85

Average puretone threshold values were 40 in the right ear and 34 in the left ear.  Maryland CNC speech recognition scores were 100 percent in both the right and left ears.  Tympanometry testing revealed abnormal acoustic reflexes in ipsilateral and contralateral tympanograms bilaterally and normal findings of acoustic immittance bilaterally.  The Veteran was diagnosed with sensorineural hearing loss from 500 to 4000 Hertz and 6000 Hertz or higher, bilaterally.  The examiner opined that it was at least as likely as not that the Veteran's hearing loss was caused by or a result of an event in military service.  He noted that the Veteran's service records indicated that his hearing thresholds were within normal limits from 500 to 6000 Hertz bilaterally upon his entrance into active service.  The examiner explained that, although the service records provided no hearing thresholds upon his separation from active service, the Veteran reported exposure to excessively loud sounds from gunfire and explosives in Vietnam.  He also reported involvement in an explosion that resulted in him physically landing on top of a tank.  Based on the configuration of the Veteran's present hearing loss, characterized as moderate to severe high frequency sensorineural hearing loss bilaterally, research had shown high frequency sensorineural hearing loss to be associated with excessive noise exposure.  Therefore, he found it was a 50 percent probability or greater that the Veteran suffered auditory damage during his time in service that resulted in his hearing loss.  

After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the probative evidence set forth above, that the Veteran has a current hearing loss disability which was incurred during his active service.  

As noted above, the Veteran's service information supports his reports of exposure to excessive noise during his active service.  In addition, the Board finds that the Veteran's statements regarding his exposure to excessive noise during active service are credible as they are supported by his service records.  See Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).  

Finally, in considering the December 2008, May 2011, and December 2011 VA examinations and opinions, the Board finds that this evidence, taken together with the Veteran's service information and credible lay statements, put the evidence in relative equipoise as to whether the Veteran's current bilateral hearing loss disability is related to the military noise exposure incurred during his active service.  Accordingly, the Board will resolve doubt in favor of the Veteran and find that his bilateral hearing loss is related to his past military noise exposure.  

Thus, resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted.  38 C.F.R. § 3.102 (2012).  See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for bilateral hearing loss is granted. 



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs