Citation Nr: 1326362	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  08-37 647	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant) 


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from June 1978 to June 1999, including service in Southwest Asia from October 1990 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Veteran testified in a Travel Board hearing at the Roanoke RO before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file.

In December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC to afford the Veteran a VA examination pursuant to an April 2012 Joint Motion for Remand granted by the United States Court of Appeals for Veterans Claims (Court) in April 2012.  The matter has properly been returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

In June 2013, the Board requested an opinion from a Veterans Health Administration (VHA) ear, nose, and throat (ENT) medical expert.  In July 2013, the requested VHA opinion was incorporated into the record.

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.  In this regard, additional VA treatment reports are included in the Veteran's file on Virtual VA that were not considered in the most recent April 2013 supplemental statement of the case; however, as the Board in granting the benefit sought on appeal, a waiver of the right to an initial review of such evidence by the RO is not necessary, and the Board will proceed to consider the case.  See 38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  The Veteran was exposed to loud sounds (acoustic trauma) in service.

2.  The Veteran has a current bilateral hearing loss disability for VA compensation purposes.

3.  The Veteran's current bilateral hearing loss was incurred in service.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.326(a) (2012).  The claim of service connection for bilateral hearing loss has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome adjudicated herein, no conceivable prejudice to the Veteran could result from this decision, and further explanation of how VA has fulfilled the duties to notify and assist is not necessary.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Service Connection - Laws and Regulations

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 Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In this case, sensorineural hearing loss (as an organic diseases of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply.  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).

The Court has held that a veteran may establish the required nexus between his current hearing loss disability and his term of military service if he can show that his hearing loss disability resulted from acoustic trauma.  Godfrey v. Derwinski, 
2 Vet. App. 352 (1992).  Hearing loss (also referred to as hearing "impairment") will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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.  In evaluating claims of service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

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, 1137 (West 2002); 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.

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 
10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno, 6 Vet. App. 465.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr, 21 Vet. App. a 303.  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  A veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

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.

Combat Rule

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).

In this case, the evidence supports the finding that the Veteran engaged in combat.  In particular, the Veteran's service records document his involvement in combat during the liberation of Kuwait, and participation in operations against enemy forces in Southwest Asia.  Based on this evidence, the Board finds that the Veteran engaged in combat with the enemy during service, and the combat rule is applicable.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012).

Service Connection for Bilateral Hearing Loss

The Veteran asserts that his current bilateral hearing loss is the result of noise exposure from artillery, live fire exercises, and noise exposure from working around large generators and laundry equipment while in active service.

After a review of all the evidence, the Board finds that the Veteran sustained acoustic trauma during service, including during combat.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  A May 1992 audiogram reflects that the Veteran was routinely exposed to hazardous noise.  In the April 2008 VA audiology examination, the Veteran reported that during service he was exposed to loud noise (acoustic trauma) from artillery and live fire exercises during the Gulf War while stationed in Southwest Asia.  In a January 1998 service treatment record, the Veteran reported left ear pain.  

The Board next finds that the Veteran has a current bilateral hearing loss "disability" that meets the criteria at 38 C.F.R. § 3.385, based on both audiometric test scores of 40 decibels and speech recognition test scores less than 94 percent.  A VA audiology examination was conducted in December 2010 that reveals the following puretone thresholds in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
50
60
70
LEFT
95
90
95
100
105

The puretone average in the right ear was 54 decibels.  The puretone average in the left ear was 98 decibels.  Speech recognition ability in the right ear was 70 percent and 62 percent in the left ear.  

Another VA audiology examination was conducted in March 2011 that reveals the following puretone thresholds in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
50
60
70
LEFT
85
90
90
100
105

The puretone average in the right ear was 55 decibels.  The puretone average in the left ear was 96 decibels.  Speech recognition ability in the right ear was 84 percent and 32 percent in the left ear.  

The Board finds that the evidence is in equipoise on the question of whether the Veteran's current bilateral hearing loss disability is related to the in-service loud noise exposure.  On VA audiology examination in April 2008, none of the puretone thresholds exceeded 15 decibels.  Because the VA examiner found that the Veteran's hearing was within normal limits as the examination revealed the Veteran did not have any hearing problems, the examiner did not render an opinion as to the etiology of the Veteran's hearing condition.  Significantly, the examiner diagnosed bilateral subjective tinnitus and opined that the tinnitus symptoms were as likely as not associated with noise exposure while in active service.

The Veteran underwent another VA audiology examination in December 2010.  The VA examiner opined that, even conceding the Veteran's in-service exposure to acoustic trauma, the Veteran's current hearing loss was not likely related to his exposure to noise in service.  The December 2010 VA examiner noted that the Veteran had normal hearing at service separation examination in March 1999 and at the April 2008 VA audiology examination, which was conducted 10 years after service separation.  The VA examiner concluded that there was no medical record to establish that the Veteran's hearing loss occurred during military service.

The Veteran was afforded a VA audiology examination in March 2011.  While a bilateral hearing loss disability for VA purposes (38 C.F.R. § 3.385) was revealed, the VA examiner did not render an opinion as to the etiology of the hearing loss.  

Pursuant to an April 2012 Joint Motion for Partial Remand (JMR), which found the December 2010 examination to be inadequate, the Board remanded the matter in December 2012 for an additional VA audiology examination.  Specifically, the parties of the JMR noted that the December 2010 VA examiner did not provide an adequate rationale for the opinion that the Veteran's bilateral hearing loss was not related to his active duty service because the negative opinion was based on the March 1999 and April 2008 audiometric results that indicated hearing sensitivity to be within normal limits.  As noted by the parties of the JMR, a claimant may establish entitlement to service connection for hearing loss even if there is no showing of hearing loss in service or for years thereafter, so long as evidence demonstrates a medical relationship between the in-service noise exposure and the current disability.  Hensley, 5 Vet. App. at 160.

In March 2013, the Veteran underwent another VA audiology examination pursuant to the December 2012 Board Remand.  Again, the audiometric testing results revealed that the Veteran did not have a hearing loss "disability" for VA compensation purposes.  Regardless, the March 2013 VA examiner opined that the Veteran's hearing loss is not at least as likely as not caused by or a result of an event in service.  The VA examiner explained that the Veteran does not have compensable hearing loss for VA compensation purposes, that he had hearing within normal limits at both enlistment and separation, and that VA examinations showed hearing within normal limits.  The VA examiner also noted that the Veteran denied difficulty hearing on exit examination.  

The VA examiner in March 2013 concluded that, even if hearing loss were present today, any service related hearing loss would be evident well before now, 14 years after separation.  The VA examiner provided no additional rationale or basis, to include citation to medical literature, for the opinion that hearing loss due to military acoustic trauma would be evident far prior to his current complaints, and did not mention or address the December 2010 VA examination that revealed a bilateral hearing loss disability for VA compensation purposes.  Indeed, the March 2013 medical opinion is essentially identical to the inadequate opinion proffered by the December 2010 VA examiner.  

In light of the above, the Board found the December 2012 VA examination to be inadequate and requested a VHA medical opinion from an ENT medical expert to assist in resolving the issue on appeal.  In July 2013, an otolaryngologist opined that it is not at least as likely as not that any current, bilateral hearing loss had onset in service or is otherwise etiologically linked to service.  The otolaryngologist explained that he was not familiar with a case of hearing loss presenting several years post-acoustic trauma.  He also noted that the Veteran's recent audiogram does not show significant hearing loss.  He did not comment on, or address the significance of, the December 2010 and March 2011 VA examinations revealing more significant hearing loss.  Indeed, the otolaryngologist's rationale is also insufficient for the same reasons the Board found the previous VA examinations inadequate.

There is no other adequate medical nexus opinion that addresses the etiology of the Veteran's bilateral hearing loss; as such, the Board must look to the remaining evidence of record to determine whether service connection is warranted.  38 C.F.R. § 3.303(d) (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).  Also in this regard, the Board finds that affording the Veteran yet another VA examination of his ears (decades after separation from service) or obtaining another expert medical opinion would be futile and unlikely to result in a valid opinion.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  

The Board acknowledges that this matter has been on appeal at the Board since March 2010 and has been repeatedly adjudicated by both the Board and by the Court.  Indeed, sufficient evidence has been submitted to adequately decide the claim on appeal, or the best that can be obtained.  Further, additional development of this case does not serve the interests of the Veteran or VA in providing a timely adjudication of this appeal.  Based on the above discussion and the evidence of record, the Board finds no reason to further delay the adjudication of this issue.

Here, the Veteran was diagnosed with bilateral hearing loss after discharge.  See Hensley at 160.  This diagnosis coupled with the evidence pertinent to service, specifically, the Veteran's competent and credible statements indicating in-service acoustic trauma and his service treatment records noting routine exposure to hazardous noise are evidence supportive of the Veteran's claim.  Significantly, as noted above, the April 2008 VA examiner diagnosed bilateral subjective tinnitus and opined that the tinnitus symptoms were as likely as not associated with noise exposure while in active service.  

The Board finds this opinion regarding tinnitus is also supportive of service connection for bilateral hearing loss.  The April 2008 opinion establishes that the Veteran experienced acoustic trauma and that he sustained a current disability of the ear as a result of that trauma.  Indeed, the Veteran's hearing loss disability (consistently identified as sensorineural hearing loss) is of the type and configuration that is consistent with in-service noise exposure given the Veteran's history and current diagnosis of subjective tinnitus.  Sensorineural hearing loss is defined as "that due to a lesion in either the cochlea (sensory mechanism of the ear), the vestibulocochlear nerve, the central neural pathways, or a combination of these structures.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 836 (31st Ed. 2007); see also 38 C.F.R. § 20.903(b)(2) (notice to the appellant is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board's disposition of the appeal).  The Veteran's subjective tinnitus (as diagnosed by the April 2008 VA examiner) is defined as "the usual type of tinnitus, in which the sound cannot be heard by an examiner or measured by objective instruments."  Significantly, subjective tinnitus is also known as sensorineural tinnitus.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1956 (31st Ed. 2007).

While the Veteran's bilateral hearing loss did not manifest within a year after discharge from service or for years after separation, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  See 38 C.F.R. § 3.303(d).  

In this case, consideration of the totality of the evidence of record establishes that the Veteran's bilateral hearing loss was incurred in service, that is, that the hearing loss had its onset in service even though such was not diagnosed until years later.  Id.  The evidence shows acoustic trauma that was sufficient to cause nerve damage to the ears, as recognized by the grant of service connection for tinnitus based on that loud noise exposure.  The evidence also reflects diagnosis of sensorineural hearing loss, which is consistent with sensorineural (nerve) damage.  In this case, the only potential cause of nerve damage identified was the in-service event and injury of trauma.  The nature of the diagnosis of sensorineural hearing loss recognizes the nerve involvement.  There is no adequate competent medical opinion to weight against the claim, despite the fact that multiple attempts were made to obtain an opinion on the question of nexus to service.  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for bilateral hearing loss, as incurred in service, have been met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs