Citation Nr: 1325811 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 10-22 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from May 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2009. The Veteran withdrew the issue of entitlement to a higher rating for posttraumatic stress disorder (PTSD) in April 2011. In July 2011, the appellant appeared at a videoconference hearing held before the undersigned. FINDING OF FACT Bilateral hearing loss is related to combat service. CONCLUSION OF LAW Bilateral hearing loss was incurred during active combat service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) need not be discussed. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112(a), 1113; 38 C.F.R. §§ 3.307(a), 3.309(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 service connection, 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting 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). The Veteran served in Vietnam from October 1968 to October 1969. His occupational specialty during that period was rifleman, and he was awarded the Combat Infantryman Badge (CIB). Thus, the Veteran's combat participation is established, and the relaxed standard of proof pertaining to service incurrence for combat-related claims applies. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). Specifically, if a combat Veteran presents satisfactory lay or other evidence of service incurrence or aggravation of a disease or injury, which is consistent with the circumstances or hardships of his service, then an evidentiary presumption of service connection arises and the burden shifts to the government to disprove service incurrence or aggravation by clear and convincing evidence. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The service treatment records do not show hearing loss in service. Audiometric testing on the March 1968 entrance examination revealed pure tone thresholds to be 0 decibels at the frequencies of 500, 1000, 2000, and 4000 hertz in the right ear. In the left ear, corresponding thresholds were also 0 decibels, except at the frequency of 4000 hertz, which had a threshold of 5 decibels. The separation examination in March 1970 included audiometry findings, which revealed pure tone thresholds to be 0 decibels, bilaterally, at all frequencies tested, which were 500, 1000, 2000, and 4000 hertz. On a VA audiology examination in April 2009, the Veteran reported a history of noise exposure from gunfire, explosions, grenades, and artillery while he was in combat in Vietnam. He reported no occupational noise exposure, and occasional recreational noise exposure from a chain saw and hunting. He reported persistent tinnitus, which had begun during combat after grenades exploded nearby. On audiometric examination, pure tone thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 hertz were 5, 10, 15, 30, and 50 decibels in the right ear. Corresponding findings in the left ear were 10, 15, 25, 65, and 65 decibels. Speech recognition in the right ear was 96 percent, and 90 percent in the left ear. The diagnosis was sensorineural hearing loss in the left ear. In May 2009, a VA audiologist provided an opinion that in view of the normal thresholds in service, with no significant threshold shift between enlistment and separation, currently hearing loss was not caused by or a result of military noise exposure. In September 2010, the Veteran was evaluated by J. Shelby, M.D., an otorhinolaryngologist at the Mayo Clinic. Dr. Shelby noted that the Veteran's audiogram in May 2010 showed sensorineural hearing loss bilaterally, with word recognition scores of 100 percent in the right ear and 90 percent in the left ear. Examination was unremarkable as to the structure of the ear and ear drums. Dr. Shelby noted that the VA examiner had concluded that tinnitus was at least as likely as not related to military noise exposure. Dr. Shelby concluded that the Veteran's current hearing loss was at least as likely as not a result of his noise exposure during his Vietnam service. He based this on the multiple exposures to high impact explosions and weapons fire, including blast exposures severe enough to knock him to the ground. In addition, tinnitus had started at the time and persisted since then. Observing frequencies which were missing on the separation audiogram report, he said that had the additional frequencies of 3000, 6000, and 8000 hertz been tested at discharge, high frequency hearing loss might have been detected. He also noted that the persistence of tinnitus after significant sound exposure is associated with hearing loss in a vast majority of individuals. In February 2011, the claims file was referred to a VA physician for a rationale concerning the previous conclusion, that hearing loss was not due to military noise exposure. The physician quoted from material identified only as the "Institute of Medicine," stating that the most pronounced effects of noise exposure on pure-tone thresholds were measurable immediately following the exposure. Also, a delay of many years in the onset of noise-inducted hearing loss following an earlier noise exposure was extremely unlikely, and individuals with prior hearing loss were not more susceptible to subsequent noise-induced hearing loss. The physician concluded that therefore, any worsening from the time of service to the current time was based on post-service noise exposure. Therefore, currently hearing loss was not due to or aggravated by military noise exposure. In July 2011, the Veteran testified at a hearing before the undersigned, during which he summarized his in-service noise exposure, and described some of the more intense episodes of noise exposure from various types of weaponry in Vietnam. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, Dr. Shelby's opinion was provided by an expert in the field of otorhinolaryngology, whereas the VA physician was not identified as such. Moreover, the question presented to the VA physician was not for an independent opinion as to whether the hearing loss was due to in-service noise exposure, but rather, for a rationale to support a previous negative nexus opinion which had been provided by an audiologist. This pre-determined outcome considerably diminishes the probative value of the opinion. In determining the probative value to be assigned to a medical opinion, the Board must consider whether the medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, whether the medical expert provided a fully articulated opinion, and whether the opinion is supported by a reasoned analysis; the most probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. Shelby's conclusion was based, in part, on the history of tinnitus which began with the in-service noise exposure, whereas the VA physician did not address the tinnitus aspect. The VA examiner said, in essence, that hearing loss due to in-service noise exposure would have shown up at discharge, and that his current hearing loss was due to post-service noise exposure. However, the Veteran's occasional post-service noise exposure cannot be said to compare, in intensity or duration, with the noise exposure from various types of weapons during his combat service. Moreover, Dr. Shelby pointed out that the in-service tests did not include the frequencies of 3000, 6000, or 8000 hertz, which, he said, might have detected high frequency hearing loss. Although it is true that a hearing loss at the frequencies of 6000 and 8000 hertz would not establish hearing loss under 38 C.F.R. § 3.385, under Hensley, service connection may be granted based on post-service audiometric findings. In sum, the Veteran, who was awarded the CIB, has described extensive noise exposure during his combat service. The Board finds his statements to be credible, and entirely consistent with his documented combat service as a rifleman in Vietnam. Hearing loss was not documented on the separation audiogram, which simply noted 0's at all tested frequencies. According to an expert in otorhinolaryngologist, the tested frequencies did not include some frequencies which are relevant to the presence of noise-induced hearing loss. Based on the Veteran's credible statements of in-service noise exposure, current audiometric findings showing a hearing loss disability for VA purposes, and Dr. Shelby's opinion, which provides a medically sound basis upon which to attribute the post-service findings to the injury in service, and the absence of credible evidence of significant post-service noise exposure, the Hensley criteria for a grant of service connection are met. The VA examination is insufficient to outweigh this evidence in the Veteran's favor. Accordingly, service connection for bilateral hearing loss in this combat Veteran is warranted. In reaching this determination, the benefit-of-the-doubt rule has been applied. See 38 U.S.C.A. § 5107(b). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs