Citation Nr: 1323863	
Decision Date: 07/26/13    Archive Date: 08/06/13

DOCKET NO.  12-14 463A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from December 1955 to February 1958. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Although the rating decision also denied claims of service connection for tinnitus and an eye condition, the Veteran's April 2011 notice of disagreement (NOD) expressed disagreement only with the issue of service connection for hearing loss.  Consequently, the claims of service connection for tinnitus and an eye condition are not, at present, within the Board's appellate jurisdiction.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201.

The Veteran testified before the undersigned Acting Veterans Law Judge in a hearing at the RO in May 2013.  A transcript of the hearing has been associated with the claims file.  

The issue of entitlement to service connection for depression was raised in the Veteran's April 2011 NOD, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it must be referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran suffered acoustic trauma during service as a Gunner's Mate, which involved noise exposure from gun fire and aircraft taking off and landing in close proximity to his location.  

2.  Audiometry testing shows a current hearing loss disability for VA purposes.  

3.  The credible and competent lay evidence of record shows that symptoms of hearing loss have been continuous since the Veteran's noise exposure during service.  


CONCLUSION OF LAW

By resolving all reasonable doubt in the Veteran's favor, a disability manifested by bilateral hearing loss is due to disease or injury that was incurred coincident with active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that service connection is warranted for bilateral hearing loss.  

Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013).  Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).  

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including other organic diseases of the nervous system, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2013).  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, 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) (2013).  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.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker, 708 F.3d at 1337.

Service connection for hearing loss specifically may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).   Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley, 5 Vet. App. at 157.  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, 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 (2013).  

A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  However, in making its ultimate determination, the Board will give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).
In the present case, the Board finds that service connection is warranted for bilateral hearing loss.  

First, the evidence of record confirms that the Veteran was exposed to significant noise during service.  Specifically, the Veteran testified at his Board hearing that he worked on an aircraft carrier during service.  Hr'g Tr. 4.  He was a Gunner's Mate, which involved firing guns aboard the ship.  Hr'g Tr. 4.  Furthermore, he worked five or six feet below the deck of the ship, which exposed him to additional noise from planes taking off and landing.  Hr'g Tr. 5.  The Board finds that the Veteran's testimony is credible and competent evidence of noise exposure during service.  

In addition to the Veteran's own testimony, his DD Form 214 confirms that his primary specialty during service was GM 0600.  This abbreviation is consistent with "Gunner's Mate."  See, e.g.,, Compilation of Enlisted Ratings and Apprenticeships, U.S. Navy, 1775 to 1969, http://www.history.navy.mil/faqs/faq78-3.htm#anchorg.  Consequently, the official service department records provide further evidence making it more likely than not that the Veteran was exposed to noise during service.  

Finally, it is important to note that the Veteran's February 1958 service separation examination shows a normal clinical evaluation.  This includes a 15 out of 15 Whispered Voice test.  However, it is common knowledge that the Whispered Voice test is not a precise or completely reliable measure of hearing loss.  Therefore, the Whispered Voice test results here are not sufficient evidence to deny the claim.  

For these reasons, the Board finds that the evidentiary record establishes that the Veteran suffered acoustic trauma during service.  See Hensley, 5 Vet. App. at 159.  

Next, the record includes evidence showing a current hearing loss meeting the criteria to be considered a disability for the purposes of applying the laws administered by VA, pursuant to 38 C.F.R. § 3.385.  

Specifically, the Veteran underwent a VA audiological examination in December 2010 in connection with the instant claim.  At that time, an audiogram showed hearing acuity as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
45
50
55
60
65
LEFT
30
35
60
65
75

The December 2010 VA examiner diagnosed asymmetric sensorineural hearing loss.  Additionally, a controlled speech discrimination test showed speech recognition thresholds to be 58 percent in the right ear and 59 percent in the left ear.  (However, the VA examiner noted that these results should not be used for rating purposes.)   

Because this December 2010 VA examination shows audiometry thresholds of at least 40 decibels in each ear, the Veteran's impaired hearing is considered to be a disability for VA purposes.  See 38 C.F.R. § 3.385.  Therefore, the evidentiary record establishes a current disability.  

Finally, the record here presents evidence showing that it is as likely as not that the current bilateral hearing loss disability is a result of the Veteran's noise exposure during service.  

As a threshold matter on this question, the Board finds that sensorineural hearing loss constitutes an "other organic diseases of the nervous system."  It is VA's long-standing practice to consider the disease as such.  See M21-1MR III.iv.4.B.12.a.  Accordingly, it is subject to presumptive service connection under 38 CFR 3.309(a) and, correspondingly, the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b).  See Walker, 708 F.3d at 1337.   

Resulting from this preliminary finding, the Board further finds that the evidence of record establishes that it is at least as likely as not that the Veteran's hearing loss has existed continuous since his noise exposure during service.  
Specifically, he wrote in his April 2011 NOD and testified at his May 2013 Board hearing indicating that his hearing loss has been present since service.  

Also important, the Veteran's wife testified that she first observed his hearing loss while he was still on active duty.  Hr'g Tr. 3.  She also maintained that his hearing loss has existed continuously since that time.  Hr'g Tr. 7.  The Board finds that this testimony is significant because the Veteran's wife made clear that they had been married for 58 years, which means that they had been married before the Veteran entered service.  Consequently, she was able to directly observe the decline in the Veteran's hearing since its onset during service.  

The Board finds that the testimony of both the Veteran and his wife is credible and competent evidence.  As such it establishes that the Veteran's impaired hearing loss began during service and existed continuously since that time.  

Weighing against the claim, the December 2010 VA examiner, previously noted herein above, concluded that the Veteran's hearing loss is less likely than not due to military noise exposure and is more likely due to post-service occurrence or the aging process.  The examiner reasoned that the records are silent for any hearing loss.  Furthermore, according to the VA examiner, the configuration of the current hearing loss is not necessarily that typical of noise exposure, and it is now 52 years after the Veteran's service, which is when presbycusis begins around the age of 60.  

For several reasons, the Board assigns the December 2010 VA examiner's opinion limited probative weight.  First, the VA examiner relied on an inaccurate factual foundation.  Most significantly, the examiner did not account for the lay statements from the Veteran and his wife demonstrating hearing loss during service.  Second, the VA examiner's ultimate opinion is not soundly supported by her conjectural reasoning.  Of note, the VA examiner found only that the current hearing loss is "not necessarily" consistent with noise exposure.  This type of reasoning is indeterminate because the phrase "not necessarily" implies that the Veteran's impaired hearing could be due to noise exposure or some other potentially alternative cause.  The VA examiner did not clarify what she meant by "not necessarily."  Although the examiner went on to state that presbycusis starts around age 60 consistent with the Veteran's age, this was given as a statement of fact rather than an opinion as to differential etiology.  The Board may infer that this was her intended reasoning even though she did not fully articulate this as the justification for her opinion.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012).  Nonetheless, the omission reduces the probative value of the opinion.  Overall, due to the inadequate factual foundation and the unsound reasoning, the December 2010 VA examiner's opinion must be assigned minimal probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Thus, when weighing the more probative lay statements against the less probative December 2010 VA examiner's opinion, the Board finds that the evidence record establishes that it is at least as likely as not that the Veteran's impaired hearing has existed continuously since his active duty service.  

In light of the foregoing, the evidence of record shows acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and competent and credible evidence of hearing loss existing continuously since service.  See Hensley, 5 Vet. App. at 159.  Accordingly, after resolving all reasonable doubt in the Veteran's favor, the evidence is at least in a state of relative equipoise on all material elements of the claim.  Accordingly, service connection for bilateral hearing loss is warranted, and the claim is granted.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385; Fagan, 573 F.3d at 1287.

As a final matter, the Board observes that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  Here, the disposition is fully favorable to the Veteran.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished.  



ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
JAMES D. RIDGWAY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs