Citation Nr: 1323714	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  10-41 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Pennsylvania Department of Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1967 to October 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  In March 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested.  See 38 C.F.R. § 3.103(c) (2012). 


FINDINGS OF FACT

1.  A right ear hearing loss is shown to have developed during active service.

2.  A left ear hearing loss disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service.


CONCLUSIONS OF LAW

1.  A right ear hearing loss was incurred in military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

2.  A left ear hearing loss was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a 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).  The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in January 2009.

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service treatment records, VA treatment and examination reports, a private medical opinion, and the Veteran's statements and testimony in support of his claim.  There is no evidence of any additional existing pertinent records.  The Board finds that further attempts to obtain additional evidence would be futile.  

When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.  The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2012).  The available medical evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. 

Service Connection

Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (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 the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  Sensorineural hearing loss is a chronic disease for presumptive service connection purposes.

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of 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 present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  Clyburn v. West, 12 Vet. App. 296 (1999).  Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 1372 (Fed. Cir. 2007)

Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  

A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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.  See 38 C.F.R. § 3.385 (2012).

Once the requirements of 38 C.F.R. § 3.385 (2012) have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service.  In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met.  Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988).  Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active military service.  Id. at 158.  The threshold for normal hearing is 0 to 20 decibels.

Service treatment records dated prior to November 1, 1967, are presumed to use the American Standards Association (ASA) standard, rather than the current International Standards Organization - American National Standards Institute (ISO-ANSI) standard.  Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz.

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102 (2012).

The pertinent evidence shows that upon enlistment examination in August 1966 an audiological evaluation (presumed in this case to be ISO-ANSI standard as most favorable to the Veteran and based upon the overall record) revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
0
LEFT
15
5
0
5
0

The examination report noted no hearing defects.  A physical profile (PULHES) at that time was 111111.  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition.").

A September 1968 audiological evaluation (noted to have employed the ASA standard and converted below to the ISO-ANSI standard) revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
10
25
LEFT
10
5
5
10
0

An October 1970 separation examination audiological evaluation (noted to have employed the ISO-ANSI standard) revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
15
5
25
LEFT
5
5
5
15
5

The examiner noted the Veteran had a mixed hearing loss which was not considered to be disabling.  An unsigned examination report on the same date appears to have transposed the findings for the right ear at 3000 Hertz and 4000 Hertz.  

On private audiological evaluation in May 1999, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
25
55
50
LEFT
20
15
45
45
50

On private audiological evaluation in June 2002, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
40
55
55
LEFT
10
5
45
45
55

On private audiological evaluation in October 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
45
60
55
LEFT
15
5
50
50
55

The examiner noted normal right and left ear hearing at speech frequencies and a moderate loss at high frequencies.  

In statements and testimony in support of his claim the Veteran reported having been exposed to jet engine noise while stationed on an aircraft carrier during active service.  He stated that after service when he worked in a noise environment he had been required to wear hearing protection.  

VA treatment records dated in January 2009 noted audiometry revealed normal hearing from 250 Hertz to 1000 Hertz decreasing to a mild to severe sensorineural hearing loss from 1500 Hertz to 8000 Hertz, bilaterally,  Speech reception thresholds coincided with the tine results.  

On VA authorized audiological evaluation in August 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
55
60
60
LEFT
20
25
55
60
60

Speech audiometry revealed speech recognition ability of 64 percent in the right ear and of 80 percent in the left ear.  It was noted the Veteran reported noise exposure from aircraft on active duty and noise exposure as a mechanic after his service discharge.  The diagnosis was bilateral sensorineural loss.  The examiner, an audiologist, noted a review of service treatment records revealed hearing within normal limits at the time of discharge.  It was the examiner's opinion that it was not at least as likely as not that his hearing loss had its origin in noise exposure in active service.  

In an April 2010 statement J.F.M., M.D., identified as associated with a medical practice specializing in ear, nose, and throat disorders and audiology, noted that audiogram findings had been reviewed.  An induction audiogram in January 1967, it was noted, revealed no evidence of significant hearing loss, but that a 1968 audiogram revealed a mild loss at 4000 Hertz in the right ear and that a 1970 audiogram continued to show a right ear hearing loss at 4000 Hertz.  The left ear was unremarkable.  Current audiometric studies showed bilateral, equal, sensorineural hearing loss.  The physician found that the audiograms supported the possibility that the Veteran was starting to have some hearing loss secondary to noise exposure in the right ear while in military service, but that it did not account for his current left ear hearing loss.  It was noted, in essence, that he could not be sure that the current loss, which was equal in nature, had not been caused by a combination of noise trauma throughout his subsequent years and normal aging.  

Based upon the evidence of record, the Board finds that right ear hearing loss is shown to have developed during active service.  The April 2010 private physician's opinion that the audiogram findings in service supported the conclusion that a right ear hearing loss had started to develop in service is persuasive.  The opinion is also consistent with the October 1970 service department examiner's finding of a mixed hearing loss that was not considered disabling.  Therefore, entitlement to service connection for right ear hearing loss is granted.

The Board finds, however, that a left ear hearing loss disability was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service.  Significantly, although the October 1970 examination report noted a diagnosis of mixed hearing loss without indicating which ear, the April 1970 private physician found the service treatment records revealed the Veteran's left ear hearing was unremarkable.  While the Veteran's statements as to noise exposure during service are credible, his opinions as to etiology concerning his present left ear hearing loss are not competent evidence.  This is a matter that requires medical expertise and the evidence demonstrates that the medical opinions of record do not indicate a causal relationship between a left ear hearing loss manifest many years after service and his noise exposure during active service.  Therefore, entitlement to service connection for left ear hearing loss must be denied.

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the service connection claim for left ear hearing loss.


ORDER

Entitlement to service connection for right ear hearing loss is granted.

Entitlement to service connection for left ear hearing loss is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs