Citation Nr: 1328897 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 13-18 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from July 1950 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and the issue is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, bilateral hearing loss has been found to be causally related to active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for bilateral hearing loss, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 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 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. See 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 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 v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran claims that his current bilateral hearing loss is related to his period of active duty. In a statement received by the RO in October 2011, the Veteran stated that he worked as a rifleman and used his rifle at least one weekend each month and sometimes as many as three weekends during a month. He stated that he spent a lot of time on the firing range without hearing protection. He also stated that there was a two week camp at Camp McCoy and Fort Leonard Wood and he spent time running assaults, firing blanks, machine guns, and grenades. The Veteran explained that he was subsequently classified as an Aviation Mechanic and spent time on the flight deck of an aircraft carrier without hearing protection. Concerning evidence of a current disability, the VA audiogram performed in connection with the September 2011 VA examination reflects a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Accordingly, the Veteran has a current disability. With respect to evidence of incurrence of an in-service disease or injury, the service treatment records are absent for any complaints for or treatment of decreased hearing acuity during his period of active duty. The Veteran's hearing at separation was recorded as normal (15/15) based on whispered voice tests. However, as noted in Training Letter 10-02, which was issued in March 2010 regarding the adjudication of claims for hearing loss, "whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 211D (10-02), dated March 18, 2010. In that letter, the Director of the VA Compensation and Pension Service stated that "whispered voice tests . . . cannot be considered as reliable evidence that hearing loss did or did not occur." Id. Further, while the Veteran is not considered competent to diagnose himself with a bilateral hearing loss disability for VA purposes, he is competent to attest to symptoms capable of lay observation, which includes difficulty hearing and his exposure to noise. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran was exposed to acoustic trauma as his descriptions of noise exposure are consistent with his circumstances of service and his statements describing decreased hearing since service are competent and credible. With respect to a nexus opinion, the Veteran was provided a VA examination in September 2011. The examiner reviewed the claims file and the Veteran was diagnosed with sensorineural hearing loss. The examiner indicated that a medical opinion could not be provided without resorting to speculation because there were no audiograms in the claims file and the examiner did not know how long the Veteran's hearing loss had been asymmetrical. The examiner stated that the Veteran should see an Ear, Nose, and Throat (ENT) specialist to determine the cause of the asymmetry of his hearing loss. In January 2012, an addendum opinion was provided by an ENT examiner. The ENT examiner opined that the Veteran's bilateral hearing loss is "at least as not (50 % or greater probability) incurred in or caused by acoustic trauma that occurred July 1950 to April 1954." In a subsequent addendum opinion to the examination report, the ENT examiner opined that after review of the claims folder and the September 2011 audio examination, "There are not any SMR's in the file to make a comparison to with respect to his hearing on enlistment. Without any comparative date, I am unable to determine the cause of the hearing loss without resort to mere speculation." In this case, the evidence, as it now stands, is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service acoustic trauma. In reaching this conclusion, the Board recognizes that the September 2011 VA examiner could not provide a medical opinion without resorting to mere speculation. However, the examiner referred the matter to an ENT examiner for an opinion to determine the cause of the asymmetry of the Veteran's hearing loss. This referral tends to indicate the uncertainty of the September 2011 VA examiner's opinion. The initial addendum opinion from the ENT examiner was positive. In a subsequent addendum opinion, the same ENT examiner explained that the cause of the hearing loss could not be determined without mere speculation as there were no service treatment records with respect to his hearing on enlistment. The enlistment report of medical examination shows that the Veteran's hearing was evaluated as normal and the Veteran was presumed sound on entrance. Therefore, the examiner's basis for the opinion is inadequate because the Veteran's hearing on enlistment is normal and, therefore, any records from enlistment are not relevant to the inquiry at hand. For this reason, the subsequent addendum opinion is afforded low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). Although the Board could remand for another nexus opinion regarding the etiology of the Veteran's bilateral hearing loss, the Board finds that the medical evidence is sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Here, the Board finds that the medical evidence, consisting of the speculative opinion and the initial positive addendum opinion, is in equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service acoustic trauma. Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board will grant service connection for bilateral hearing loss. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs