Citation Nr: 1324370	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  07-35 422	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for hearing loss, including as due to a tumor of the parotid gland.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel






INTRODUCTION

The Veteran was in the National Guard from February 1970 to January 2005, during which time he had periods of active duty training (ADT) and inactive duty training (IDT).  He served on active duty from March 2003 to December 2004. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating action by the above Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2010, and more recently in December 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development.  After completing the additional development, the AMC continued to deny the claim (as reflected in an April 2013 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration.  

The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence.


FINDINGS OF FACT

1.  The Veteran's complete service treatment records are unavailable.

2.  The competent and credible evidence indicates that the Veteran's bilateral hearing loss was, at least in part, caused by acoustic trauma during his active military service.





CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was incurred during his military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012).  The VCAA applies in the instant case.  However, the Board's grant of service connection for bilateral hearing loss herein represents a complete grant of the benefit sought on appeal.  Thus, no further discussion of VA's duty to notify and assist is necessary.


Law and Analysis

The Veteran seeks service connection for bilateral hearing loss.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Certain chronic diseases, such as organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  [Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a).  See M21-1MR III.iv.4.B.12.a.]  

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.  38 C.F.R. § 3.303(a).  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.

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, 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.  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a 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).  See Hensley, 5 Vet. App. at 159.  

After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 

In the current appeal, the Veteran contends that his current bilateral hearing loss had its onset during his period of active military service in Iraq after begin called to active duty from the Alabama National Guard.  See VA Form 21-526, Veteran's Application for Compensation and/or Pension received in January 2005.  

The Veteran has also admitted to 20 years of civilian noise exposure working in a mobile home plant.  He also gave a history of surgery for a tumor of the parotid gland and the subsequent development of hearing loss as a result.  See December 2005 VA examination report, VA Form 9 received in November 2007, and March 2013 VA examination report.

With regard to the Veteran's lay statements, the Board notes that competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2012).  Competent lay evidence is evidence provided by a person who has personal knowledge (that is, that he/she actually observed; derived from his/her own senses) of facts or circumstances and conveys matters that can be observed and described by a lay person.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  In this regard, the Board acknowledges that the Veteran is competent to give evidence about what he sees and feels; for example, he is competent to report that he had problems hearing since service.  In addition, based on the evidence submitted in support of his claim, the Board finds the Veteran to be credible with respect to his assertions. 

The Veteran's DD 214 shows that his military occupational specialty (MOS) was unit supply specialist, a specialty identified as one with a low probability of noise exposure.  See VBA Fast Letter 10-35 (September 2010).  However, the Board notes that the RO has already conceded the Veteran's in-service noise exposure in its March 2006 grant of service connection for tinnitus based on such exposure.  Therefore, the Board also concedes the Veteran's exposure to noise in service.  See 38 U.S.C.A. § 1154(a) (West 2002).  

Unfortunately, the Veteran's service treatment records are not available for review, except as noted below.  A review of the claims folder indicates that while the RO was able to secure some records, dated from 2003 to 2004, the majority of these records appear to be unavailable.  A formal finding on the unavailability of these records was also made in a September 2005 VA Memorandum.  Accordingly, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

The Board notes that case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed.  Ussery v. Brown, 8 Vet. App. 64 (1995).  Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  While it is unfortunate that the service treatment records are not complete, the appeal must be decided upon the evidence of record. 

The Veteran's available service treatment records show that in February 2004, in connection with medical board proceedings, a diagnosis of mild high frequency hearing loss was noted.  The specific findings were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
10
25
30
LEFT
5
0
15
25
20

These hearing thresholds do not meet the criteria of disability under VA regulations.  In other words, the findings do not show a puretone threshold in any critical frequency was 40 decibels or greater, that three or more frequencies were 26 decibels or greater, or that the speech recognition score was less than 94 percent.  See 38 C.F.R. § 3.385.  

Post service records show the Veteran was afforded a VA audiological examination in December 2005, within a year of service discharge.  At that time pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
15
25
LEFT
5
10
5
20
20

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left.  

Although these hearing thresholds do not meet the criteria of disability under VA regulations, the Veteran's speech recognition score of 92 percent, qualifies as a hearing loss disability in the left ear, under 38 C.F.R. § 3.385.

Pursuant to the December 2012 Board remand, the Veteran was afforded another VA examination in March 2013 for the specific purpose of obtaining an opinion as to whether or not his current hearing loss was due to or aggravated by the parotid tumor, the in-service surgery to remove that tumor, or was otherwise of service onset.  The audiologist acknowledged the Veteran's history of military and occupational noise exposure, and his history of surgery for a parotid tumor.  

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




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
25
5
LEFT
25
15
15
25
30

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left.  Again while these hearing thresholds do not meet the criteria of disability under VA regulations, the Veteran's speech recognition scores qualify as a hearing loss disability for both ears, under 38 C.F.R. § 3.385.

The examiner also diagnosed the Veteran with bilateral sensorineural hearing loss, but could not provide a medical opinion regarding its etiology without resorting to mere speculation.  She explained that the Veteran's file first indicated a mild high frequency hearing loss in February 2004.  She noted that since this was the first testing available in the Veteran's file, it could not be known whether the high frequency loss existed prior to this date or not.  Likewise since the Veteran's parotid tumor was removed in January 2004, it could not be known if the hearing loss was present prior to the surgery.  The audiologist also noted that the loss on the subsequent testing has changed from the right ear to the left ear.  The thresholds at 4000 Hz in the right ear was reduced on the testing in February 2004, but then 6000 Hz in the left ear was reduced on testing within the same month.  

She concluded that the current test results indicate a mild high frequency loss in both ears.  She then noted the Veteran's military service noise exposure to gunfire and heavy equipment, and his occupational noise exposure while working in a mobile home plant for 20 years.  She concluded that there was no way to determine whether or not the Veteran's hearing loss existed prior to February 2004 and noted that there were no follow-up notes after the tumor removal.

In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran 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 (1990).  In this case, the Board is satisfied that the Veteran's bilateral hearing loss cannot be clearly disassociated from his conceded in-service noise exposure.  

As noted previously, the March 2013 VA audiologist was unable to determine, without resorting to speculation, whether the Veteran's hearing loss was related to service.  The Board notes that relying on the VA examiner's hesitance to offer a definitive opinion "without resort to speculation" is disfavored by the courts, see Jones v. Shinseki, 23 Vet. App. 382 (2009), and such an opinion by itself provides neither positive nor negative support for the claim.  Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009).  However this alone does not make the medical opinion inadequate, as a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Jones supra, at 389-90. 

Here, the audiologist explained specifically why she was not able to offer an opinion.  She cited to the relevant available evidence and indicated that the first indication of a mild high frequency hearing loss was in February 2004 and that without adequate data of the Veteran's hearing acuity prior to this date, it was impossible to determine whether his hearing loss existed prior to the January 2004 surgery.  In addition, she also acknowledged the Veteran's history of in-service noise exposure, but also noted that the post-service occupational noise exposure could not be ruled out as contributing to the hearing loss. 

While the Board is not entirely satisfied with the VA opinion, the audiologist's explanation has been found to be sufficient and the opinion and rationale are competent and credible and provide probative evidence.  It is clear from a review of her report that she does not believe that all of the Veteran's hearing loss was caused by or is related to his to post-service occupational noise exposure.  But rather found that that some degree of the hearing loss could be due to the Veteran's history of military noise exposure and there is no medical opinion to the contrary.  

Moreover, of particular significance to the Board is the Veteran's conceded in-service noise exposure.  Indeed, because the Veteran has been granted compensation for his tinnitus, this fact adds weight to his claim that his hearing loss is also related to service because "an associated hearing loss is usually present" with tinnitus.  The Merck Manual, Sec. 7, Ch. 82.  Approach to the Patient with Ear Problems.  The Board has also considered the Veteran's competent descriptions of hearing loss since service (assertions that he is competent to make).  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise.  

In other words, based on the current record, the Board finds that it is not possible at this point to determine to what extent the Veteran's hearing loss may be attributed to noise exposure in service versus some other etiology including what appears to be some significant occupational noise exposure.  Therefore, some doubt remains as to whether it is at least as likely due to service as opposed to some other cause, and the Board will resolve that doubt in favor of the Veteran.  

In view of the Veteran's assertions and in light of the reasonable doubt raised in the record, the Board concludes that at least some of the Veteran's hearing loss must be attributed to service.  For these reasons, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for hearing loss is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.




ORDER

Service connection for bilateral hearing loss is granted.  




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs