Citation Nr: 1328664 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-30 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1985 to October 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In July 2011, the Veteran testified via videoconference at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The Veteran's current bilateral hearing loss disability was caused by exposure to loud noise during his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303(a), (d) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset the Board notes that under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran contends that his current hearing loss disability is due to exposure to loud noise during his military service. In a March 2010 statement and during the July 2011 hearing, he explained that he was exposed to such noise while working in the engine room and flight deck and near the ship's large guns. He also testified that his military occupational specialty was that of engineman. Service records show that he was assigned to the U.S.S. Nassau, (LHA-4), an amphibious assault ship with a flight deck. 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 (West 2002); 38 C.F.R. § 3.303(a) (2013). "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). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2013). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the U.S. Court of Appeals for Veterans Claims (Court) endorsed the view of the Secretary "that section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even though hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service." Indeed, regulation provides that 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). Given the Veteran's duty assignment and his testimony, the Board concludes that he was exposed to loud noise during service and finds this sufficient to establish the in-service element of his claim. In April 2010, VA provided the Veteran with an audiology examination. The report of that examination documents that he has a bilateral VA hearing loss disability as defined by 38 C.F.R. § 3.385. In this regard the puretone thresholds do not meet the criteria for a hearing loss disability under § 3.385 but the criteria are met by the speech recognition scores. The current disability element of his claim is met. This case therefore turns on whether the nexus element is met. The Board ultimately concludes that it is, and now turns to its reasons for that conclusion. Service treatment records contain no treatment for hearing loss or complaints of difficulty hearing. A report of an October 1985 examination at entrance into service documents a normal clinical evaluation of his ears. This report also documents results of audiometric testing at 500, 1000, 2000, 3000, and 4000 Hz. An October 1988 report of medical examination documents a normal clinical evaluation of his ears at separation from active service. It also documents results of audiometric testing at the respective frequencies. Comparing the results of audiometric testing at entrance and separation from service shows an upward shift in the puretone thresholds for both ears. There are also reports of audiograms conducted in February 1988, March 1986, and March 1989. Those show upward shifts as does the October 1988 audiogram. In each of those reports a selection is checked that the shifts were not significant. Although there is a report of medical history from when the Veteran entered active service there is no report of medical history executed at the time of separation from active service. The Board therefore cannot find that he did not have subjective symptoms of hearing loss at that time. The April 2010 VA examination report addressed the Veteran's claim of entitlement to service connection for tinnitus as well as for hearing loss. The audiologist who examined the Veteran stated that his hearing loss was not due to noise exposure while in military service. His rationale for this conclusion was that the Veteran had normal audiometry results at separation from active service and that the audiometry test results from the examination conducted in April 2010 "do not meet the requirements for establishing service connection." The RO sent the report back to the VA examiner for the examiner to provide a more detailed rationale. In a May 2010 statement the audiologist stated that the Veteran's tinnitus was most likely due to his military noise exposure. The RO subsequently granted service connection for tinnitus. The RO again sent the claims file back to the audiologist for an explanation as to whether the Veteran's hearing loss was related to the audiometric shift during service. In an August 2010 report, the examiner stated that the Veteran had normal hearing at entrance and at separation from active service and that there was not a significant shift in thresholds during service. Once again, the RO requested a clarification of the previous VA opinion. In February 2011, a different VA examiner, a physician, concluded that the Veteran's hearing loss was not due to military noise exposure. His rationale consisted of quotations from a source identified only as the Institute of Medicine. Essentially, these quotations state that the most pronounced effects of noise exposure on pure-tone thresholds are immediate and that persons with previous noise- induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing noise exposure. Appended to those quotations, and apparently the statement of the VA physician, is the following: "With normal hearing upon discharge, there is no evidence of hearing damage due to military noise exposure. Any worsening of hearing from the time of discharge to current is due to noise exposure between the time of discharge to current." A private practitioner, "O.F.," M.D., also provided an expert medical opinion as to the etiology of the Veteran's hearing loss. It is noted that Dr. O.F. is a physician with The Hearing Institute, a practice specializing in otology, cochlear implants, audiological services, and hearing rehabilitation. Dr. O.F. provided a medical opinion in September 2010, stating that the Veteran had a 5 to 10 dB hearing loss in tested frequencies over the course of his service from 1985 to 1988. This the Board finds consistent with the service treatment records. As to an opinion regarding the etiology of his hearing loss, Dr. O.F. initially stated only that "[n]oise exposure during [the Veteran's] military service is a contributing factor to his high frequency hearing loss." In an October 2010 letter, Dr. O.F. provided more a more detailed rationale for the opinion, as follows: After reviewing [the Veteran's] military medical records and C-file information related to his bilateral hearing loss. The shifts of 5 and 10 dB loss in the tested frequencies during the course of his naval service from 1985 to 1988; coupled with the fact that his current bilateral hearing loss has a configuration consistent with hearing loss caused by noise exposure. It is my medical opinion that his military noise exposure is just as likely as not the cause of his current bilateral hearing loss. During the July 2011 hearing, the Veteran acknowledged that Dr. O.F. had been provided with a complete copy of his claims file. This is supported by a July 2010 letter from the RO to the Veteran indicating that a complete copy of his claims file was provided to him. The Board notes that the Veteran reported during the April 2010 examination that he has driven a truck for a living for many years and at one time he was employed renting jet skis. He reported that he does not hunt and wears hearing protection when working on the truck and when using power tools. He provided consistent testimony during the July 2011 hearing. In short, he denied exposure to loud noise after service. There is nothing in the record to find him other than credible in this regard. There are competing opinions from medical professionals. The Court has provided guidance in weighing such opinions, explaining that most of the value of a medical opinion lies in its reasoning. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). When considering the VA opinions regarding both tinnitus and hearing loss, there appears to be some inconsistency. On one hand, VA experts attributed his tinnitus to in-service noise exposure, thus indicating that he suffered some damage to his ears at that time. On the other hand, the February 2010 VA opinion includes a statement that any worsening of his hearing because of service would have been present at separation from service and therefore his current hearing loss is not due to noise exposure during service. However, this appears to be based on general information obtained from the Institute of Medicine rather than the particular facts of the instant case. Furthermore, the Institute of Medicine information, which is not dated or specifically identified by the VA examiner, refers to post-service noise exposure as causing post-service hearing loss. In this case, though, the evidence tends to show that the Veteran has not had post-service noise exposure. Finally, the VA examiner's opinion is not significantly different than that cautioned against in Hensley in that it reduces to a rationale that because the Veteran did not have a hearing loss disability at separation from service he is precluded from obtaining service connection for any hearing loss disability later diagnosed. Dr. O.F.'s opinion is tied to the facts surrounding the Veteran in this case. Moreover, Dr. O.F.'s opinion is at least as well reasoned as that provided by the VA examiner. It does not suffer from the seeming inconsistencies regarding the Veteran's tinnitus. When comparing the two opinions, the Board is left with reasonable doubt as to whether the Veteran's bilateral hearing loss was caused by noise exposure during active service. As is required by statute and regulation, the Board must resolve this reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). It thus finds that the nexus element is met in this case. Because all three elements of service connection are met, the appeal must be granted. ORDER Service connection for a bilateral hearing loss disability is granted. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs