Citation Nr: 1329254 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-23 827 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision, by the Detroit, Michigan RO, which denied the Veteran's claim of entitlement to service connection for hearing loss. In November 2011, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2012. As discussed below, the Board finds that there was substantial compliance with its remand; thus, it may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). While the appeal was in remand status, service connection for tinnitus was granted. Therefore, that issue is no longer before the Board. FINDING OF FACT The evidence is in relative equipoise on the question of whether the Veteran's bilateral hearing loss is related to acoustic trauma he experienced during active military service. CONCLUSION OF LAW The Veteran has bilateral sensorineural hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1968. His DD Form 214 reflects that the Veteran's military occupational specialty was Field Artillery Fire Control man. The enlistment examination, dated in February 1966, revealed pure tone thresholds of 15, -5, -5, and -5 decibels in the right ear, and -5, -5, -10, and -10 in the left ear at the 500, 1000, 2000, and 4000 Hertz levels, respectively. On the February 1968 separation examination, it was noted that the Veteran's hearing was 15/15 in the left ear according to the whispered and spoken voice tests, no readings were reported for the right ear. His service treatment records (STRs) are negative for any history, treatment, or diagnosis of hearing loss or tinnitus. The Veteran's claim for hearing loss (VA Form 21-526) was received in August 2005. Submitted in support of the Veteran's claim was the report of an Audiological assessment conducted by Dr. Jackie M. Gilbert in May 2007. It was noted that the Veteran reported difficulty hearing in his right ear for many years, which he feels began while firing artillery in Vietnam during his service in the Marine Corps. The Veteran stated that he did not utilize hearing protection devices. There was no familial history of hearing loss. Dr. Gilbert stated that pure tone audiometric testing for the left ear revealed normal hearing sensitivity through 3000 Hz sloping to a mild to severe high frequency sensorineural hearing loss at 4000 through 8000 Hertz levels. Dr. Gilbert noted that the right ear testing revealed a slight to mild sensorineural hearing loss through 3000 Hz sloping to a moderately-severe to profound high frequency sensorineural hearing loss at 4000 through 8000 Hz. Speech reception thresholds were in good agreement with pure tone findings. Word recognition ability was 92 percent in the left ear and 68 percent in the right ear when presented at 55 dB Hl; when presented at 65 dB Hl, the word recognition ability improved to 72 percent in the right ear. The Veteran was afforded a VA Audiological evaluation in September 2007. On the authorized Audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 40 45 70 LEFT 25 25 25 35 50 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear. The examiner reported that pure tone audiometry showed an asymmetric bilateral mild to moderate sensorineural hearing loss, worse in the right ear. The VA examiner stated that it was not possible to attribute the cause of the hearing loss to military service without resorting to speculation because there was no evidence of this condition in the service treatment records. The Veteran was afforded another VA examination in November 2011. At that time, it was reported that the Veteran was in Vietnam for about 13 months. It was also reported that the Veteran had significant noise exposure due to his handling of weaponry, especially 8-inch guns. The Veteran reported hearing loss that seems greater in the right ear. The examiner noted that the right tympanic membrane was markedly scarred and somewhat retracted without erythema. On the authorized Audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 40 65 LEFT 20 20 20 30 60 Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 76 percent in the left ear. The pertinent diagnosis was bilateral sensorineural hearing loss. The examiner opined that it is less likely as not that the hearing loss was caused by military noise exposure versus other causes. The examiner based the opinion on lack of evidence of hearing loss in the claims file despite the fact that noise exposure was conceded by the regional office. The examiner explained that hearing was tested on separation and found to be normal in both ears according to VA rating scale; he stated that no threshold changes were noted from induction to discharge. The examiner also noted that there was no evidence of hearing loss from military service or at any time with one year of discharge. The examiner observed that there was no nexus of causation from any private source or any VA source. He noted that there was a report from Marquette General Hospital by a certified audiologist, which did not provide a nexus of causation. Despite the above-noted opinion, the VA examiner stated that the Veteran had a diagnosis of clinical hearing loss, and his tinnitus was at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner opined that it was at least as likely as not that the Veteran's tinnitus was caused by or a result of military service. The examiner stated that because noise exposure was conceded by the RO from service in the military, this evidence is sufficient to concede that a noise injury probably occurred even in the absence of direct hearing loss evidence at discharge. The examiner noted that the Institute of Medicine did not rule out the possibility that physiological changes undetectable on an audiogram at discharge may have occurred from military noise exposure conceded by the RO as in the Veteran's case. The examiner further explained that auditory damage occurs immediately, with or without measurable changes in hearing, but intrusive tinnitus can emerge later and in some cases many years later. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a Veteran served ninety days or more of active service and organic diseases of the nervous system, such as sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of termination of 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; 38 C.F.R. §§ 3.307, 3.309. 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 a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 (2013). In weighing the evidence of record, the Board concludes that service connection for bilateral sensorineural hearing loss is warranted. The evidence of record clearly demonstrates that the Veteran currently has bilateral hearing impairment as defined by VA regulations. In addition, the records indicate that the Veteran was a Field Artillery Fire Control man. Clearly, the Board notes that while the STRs are negative for any history, treatment, or diagnosis of hearing loss, pursuant to the provisions of 38 U.S.C.A. § 1154(a), the Board finds that the circumstances of the Veteran's service, including military training, would be consistent with exposure to loud noise in service. As such, the Board finds that the statements from the Veteran concerning in- service noise exposure are credible when viewed in conjunction with the available evidence. The Board finds the Veteran both competent and credible when it comes to the evidence about his exposure to noise during service. (A layman is competent to report that he was exposed to noise.) Because there is current bilateral hearing loss, and noise exposure during military service has been recognized, what is necessary in order to grant service connection is competent evidence linking the current hearing loss to service or to symptoms experienced since service. Having considered all the evidence of record, the Board finds that the evidence is in equipoise. In this case, the Board is presented with a conflicting medical information regarding the onset of the Veteran's hearing loss. In the November 2011 VA Audiological evaluation report, the examiner noted a diagnosis of bilateral high frequency sensorineural hearing loss. The examiner stated that, based on the information from the Veteran's claims file that his hearing was within the normal range at his separation examination in 1968, no evidence of hearing loss from military service or at any time with one year of discharge, and no nexus of causation from any private source or any VA source, it was less likely as not that the hearing loss was caused by military noise exposure versus other causes. Nevertheless, the VA examiner also stated that the Veteran had a diagnosis of clinical hearing loss, and his tinnitus was at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner stated that because noise exposure was conceded by the RO from service in the military, this evidence was sufficient to concede that a noise injury probably occurred even in the absence of evidence of hearing loss at separation from service. The examiner noted that the Institute of Medicine did not rule out the possibility that physiological changes undetectable on an audiogram at discharge may have occurred from military noise exposure . The examiner further explained that auditory damage occurs immediately, with or without measurable changes in hearing. Consequently, it appears from this opinion that, while hearing loss may not be detected at discharge, auditory damage nevertheless occurred with military noise exposure. This was the basis for the grant of service connection for tinnitus. The examiner specifically conceded that the evidence was sufficient to conclude that noise injury occurred in service even in the absence of hearing loss. The Board recognizes that the examiner's two opinions appear contradictory in nature. Nevertheless, in view of the Veteran's credible history of noise exposure in service, post-service medical findings of bilateral hearing loss, and the medical opinion strongly suggesting that sensorineural damage occurred even though it was not detected at separation from service, the Board finds that the evidence supporting the claim is in equipoise with that against the claim. Service connection therefore is reasonably in order for bilateral sensorineural hearing loss. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral sensorineural hearing loss is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs