Citation Nr: 1326277 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12 35 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1958 to February 1969 and from October 1969 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma in service. 2. The Veteran has provided credible lay evidence of continuity of left ear hearing loss symptoms in service and since service. 3. The Veteran's left ear hearing loss was incurred in service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). As the Board is granting the full benefit sought on appeal as it relates to the claim of service connection for left ear hearing loss, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The disorder at issue, namely hearing loss, sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 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, 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Id. Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966 VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. Any military audiograms conducted prior to November 1967 must be converted from ASA to ISO units. Essentially, that means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. It appears that a portion of the Veteran's service treatment records are unavailable through no fault of his own. Hence, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, 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 a claim, and to explain its decision when the Veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, 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 the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). The Veteran maintains that his current left ear hearing loss is related to the noise exposure that he experienced from the performance of his duties as an aviation mechanic/supervisor during his numerous years of active service. He maintains that his hearing loss had its onset in service and has continued to the present day. As noted above, the Veteran has had two separate periods of service. The first period of service was from October 1958 to February 1969. Audiological testing results from this period do not reveal that the Veteran experienced an increase in hearing loss as evidenced by the decibel level readings of 30, 20, 15, -, and 30 at 500, 1000, 2000, 3000, and 4000 Hertz at the time of an August 1960 audiogram and decibel level readings of -5, -5, 0, 10, and 10 at 500, 1000, 2000, 3000, and 4000 Hertz at the time of his April 1968 service separation examination. At the time of his second period of service in October 1969, the Veteran had decibel level readings of 0, 0, 0, 20, and 30 at 500, 1000, 2000, 3000, and 4000 Hertz. Although the Veteran had an elevated reading of 30 at 4000 Hertz, there were no findings of a pre-existing hearing condition made at that time, and the Veteran's PUHLES readings were all "1". The "PULHES" medical profile system is designed to reflect the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 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." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). As the Veteran's "H" was reported as a "1" he was found to have normal hearing. There were also no diagnoses of hearing loss made at the time of the Veteran's October 1969 service entrance examination. Thus, for VA purposes, the Veteran's hearing was normal at entrance and the presumption of soundness at entrance was not rebutted. See 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). Audiological testing performed throughout the Veteran's second period of service reveals a worsening of his left ear hearing, as evidenced by decibel level readings of 40 at 4000 Hertz at the time of July and October 1976 audiological evaluations, with the Veteran noted to be having bilateral high frequency hearing loss at the time of the October 1976 examination, and a reading of 35 decibels at the 4000 Hertz level at the time of an August 1979 audiological evaluation. The Veteran has reported having had continuous hearing problems since his period of service. He has also indicated that he has had no recreational or work-related noise exposure following service. In conjunction with his claim, the Veteran was afforded a VA examination in July 2010. The Veteran reported that he had had hearing loss since the 1980's. He indicated that his friends complained of having to repeat themselves during conversations. The Veteran stated that he experienced excessive noise as a helicopter mechanic and maintenance supervisor while in service. Testing revealed decibel level readings of 10, 20, 45, 65, and 85 at 500, 1000, 2000, 3000 and 4000 Hertz. Speech recognition testing was 86 percent in the left ear. The examiner rendered a diagnosis of normal to severe sensorineural hearing loss in the left ear. The examiner indicated that after a review of the claims folder, audiometric testing revealed a pre-existing hearing loss in October 1969. She reported that the thresholds remained unchanged in the left ear until separation and did not meet the criteria for disability according to VA regulations. It was her opinion that the Veteran's left ear hearing loss was not as likely as not related to military service. The Veteran was afforded an additional VA examination in November 2012, with the same VA examiner conducting the examination. Testing revealed decibel level readings of 20, 15, 50, 70, and 85 in the left ear with speech recognition testing being reported as 90 percent in the left ear, along with a diagnosis of sensorineural hearing loss being rendered. The examiner provided the same exact opinion that she had provided at the time of the July 2010 VA examination. The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as loss of hearing as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran's lay statements regarding exposure to noise in service and loss of hearing in service are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service as an aviation mechanic/specialist and supervisor. Furthermore, the competent medical evidence, contemporaneous with the Veteran's service, shows a loss of hearing acuity in the left ear from the time of the Veteran's induction for his second period of service throughout the second period, as evidenced by the elevated readings reported above at the 4000 Hertz level at the time of July 1976, October 1976, and August 1979 audiological evaluations. The record shows an indication of some hearing loss in service as indicated on the by the July 1976, October 1976, and August 1979 examinations, the Veteran has made credible statements averring to left ear hearing loss in service and continuous symptomatology of left ear hearing loss since service, and he currently has left ear sensorineural hearing loss disability. Accordingly the factors necessary to establish entitlement to service connection on a presumptive basis for left ear hearing loss have been met. With regard to the VA examiner's July 2010 and November 2012 opinions that the Veteran's left ear hearing loss is not as likely as not due to his period of service, the Board finds such opinions to be of limited probative value. In the rationale portion of the opinion, the examiner indicated that the Veteran's left ear hearing loss remained unchanged until separation and did not meet the criteria for VA disability according to VA regulations. However, as demonstrated above, the Veteran's hearing disability was noted to have increased throughout this period of service, as evidenced by the elevated readings at the 4000 Hertz levels. Moreover, the fact that the Veteran did not meet the criteria for a left ear hearing loss as defined by VA regulations at the time of his separation from service does not prevent the granting of service connection if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley. In addition, the examiner did not address the Veteran's assertions that he had had hearing loss in service and ever since service. As such, the Board finds the opinions of limited or no probative value. Based upon the above, the evidence support a finding that the Veteran's left ear hearing loss is related to his period of service and service connection for left ear hearing loss is warranted. ORDER Service connection for left ear hearing loss is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs