Citation Nr: 1329806 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-46 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran performed active military service from December 1973 to December 1975. Thereafter, he served with a Reserve component at various times in active duty for training (hereinafter: ACDUTRA) and inactive duty training status, including a two-week period of ACDUTRA in May 1983. This matter arises to the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board remanded the claim in April 2012 and February 2013. In a substantive appeal, the Veteran requested a hearing. In March 2011, before the scheduled hearing, he withdrew his hearing request. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran's Service Treatment Reports (STRs) do not conclusively establish that his hearing remained within normal limits during active service. 2. The Veteran had additional loud noise exposure during Reserve component service after active military service. 3. VA audiometry confirms that a current bilateral hearing loss disability exists. 4. Competent medical evidence tending to attribute a current bilateral hearing loss disability with noise exposure during active military service has been submitted. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. As set forth at 38 U.S.C.A. §§5103A, 5107 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefit sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385 (2013), which provides: 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 of 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. In Hensley v. Brown, 5 Vet. App. 155, 159, (1993), the Secretary posited that where the regulatory threshold requirements for hearing disability are not met until several years after separation from service (such as is shown here), the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system, and post-service test results that meet the criteria of 38 C.F.R. § 3.385. VA rating authorities must evaluate available testimony, clinical data, diagnoses, and any medical opinions relevant to the issue. For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results resulting in an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. The Veteran's STRs supply some audiometric information, but, at best, the STRs are inconclusive. A December 1973 enlistment examination report reflects normal hearing thresholds; however, and without explanation, no threshold value at 3000 Hertz in either ear was reported. At the time of separation from active military service in December 1975, again, no audiometric data was recorded for either ear at 3000 Hertz. At the time of separation, the left ear hearing threshold at 4000 Hertz had shifted from 5 decibels to 15 decibels (db). All other reported hearing thresholds remained approximately the same. Whether this 10 db upward shift at 4000 Hertz is clinically significant has not been addressed by an audiometry expert. During his separation examination, the Veteran completed a medical history questionnaire and checked "yes' to a history of ear, nose, or throat trouble. The examiner mentioned only that throat trouble had been reported. Although the Veteran served for several years with Reserve components following active service, the STRs contain no further audiometry data. As mentioned above, VA's criteria for service connection for a hearing loss disability are met where speech recognition scores using the Maryland CNC Test are less than 94 percent. Therefore, regardless of the hearing thresholds reported at the time of discharge from active service, because the STRs do not reflect that the Veteran underwent a Maryland CNC Test at separation, it cannot be stated for certain that a hearing loss disability for VA purposes did not arise during active service. Because the STRs do not supply audiometric data at 3000 Hertz, do not supply Maryland CNC Test word recognition scores, and do not supply further hearing data following several years of Reserve component service, the STRs are inconclusive with respect to whether military noise exposure resulted in a hearing loss disability. A line-of-duty injury determination in favor of the Veteran was made in May 1983 following a 25-foot fall with trauma to the knee and back. The Veteran was performing ACDUTRA at the time. This event is significant to the claim because in November 2008, the Veteran requested service connection for a bilateral hearing loss disability that he claimed was caused by the injury of May 1983. The Veteran has also claimed that his current hearing loss disability was caused by exposure to loud noise during active service and Reserve component service. In support of that claim, he submitted his official personnel file that reflects that he served with the infantry as a machine-gunner during two years of active service and from April 1977 to March 1985 with the Puerto Rico Army National Guard. In July 2009, the Veteran's private physician, N.A. Ortiz, M.D., offered an etiology opinion concerning the Veteran's current hearing loss disability. Dr. Ortiz briefly summarized the pertinent medical history, including active service and National Guard service. Dr. Ortiz then stated, "He was exposed to high frequency infantry noise at service for a few years due to exposure to constant gun noises, which is more probable than not the cause of his hearing loss." Dr. Ortiz concluded, "After evaluation of record, it is more probable than not that his bilateral hearing loss and his right knee problem are both service-connected." The Veteran underwent VA audiometry in August 2012. The audiologist reported hearing thresholds in all frequencies and found an average right ear hearing threshold of 52 db and an average left ear hearing threshold of 51 db. The Maryland CNC Test yielded 88 percent in the right ear and 76 percent in the left ear. The diagnosis was sensorineural hearing loss in both ears. The audiologist found the hearing loss disability unlikely to be related to military service. The supporting rationale is that the separation examination reflects normal hearing, bilaterally. In February 2013, the Board remanded the case for an addendum opinion addressing recently received evidence. The Board also asked the audiologist to address whether the May 1983 injury could cause a hearing loss disability. In March 2013, a VA audiologist reviewed the medical history and concluded that it is unlikely that the current bilateral hearing loss disability is related to military noise exposure. The rationale supporting that conclusion includes the fact that a separation examination report indicated "normal limits for frequencies from 500 - 4000H in both ears." The rationale also included a phone conversation with the Veteran wherein he reported that he noticed a hearing loss between 20 and 25 years ago, although it took some amount of time before he recognized it. The rationale also included the fact that the frequencies most vulnerable to high noise levels are from 3000 to 4000 Hertz. The audiologist then stated, "There was no effect of hearing loss for these frequencies at separation." The audiologist also dissociated the current bilateral hearing loss disability from an injury on May 13, 1983. The audiologist explained that the Veteran no longer associates that accident with his current hearing loss disability. Because there was no head trauma, the audiologist concluded that it is unlikely that the injury of May 1983 caused any hearing loss. In July 2013, a VA audiologist reviewed a recently received private audiogram and reported that there was no change to the previously supplied opinions. Because the VA etiology opinion differs from the private opinion, the Board must further assess the credibility and weight to be given each opinion. Madden, 125 F.3d at 1481. The private etiology opinion is persuasive, as it is based on accurate facts and is supported by a short rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The rationale is that the Veteran was exposed to high frequency infantry noise for a few years. This appears to be correct. Because the opinion is based on correct facts and is supported by a rationale, significant weight must be accorded the private opinion. The VA opinions, on the other hand, contain rationales and factual underpinnings that are difficult to accept. The August 2012 negative VA opinion is based on the fact that the separation examination report reflects bilateral normal hearing. This basis must be questioned for three reasons. First, at separation from active service, no hearing threshold was recorded at 3000 Hertz, an important frequency for detecting sensorineural hearing loss, according to the examiner. Because no result was recorded at 3000 Hertz, it cannot be ascertained that the Veteran's hearing thresholds were normal at separation. Second, no Maryland CNC Test was offered at separation. This basis for determining whether there was a hearing loss disability for VA purposes at separation from active service was entirely overlooked by the VA audiologist. Third, after offering a negative nexus opinion, the audiologist controverted that opinion with this opinion: At present, there is moderate to severe sensorineural hearing deficit for both ears at 2-8KHz. Veteran reports 10 additional years of service as a national Guardsmen after active duty, which may include recurrent noise exposure. This and the normal effects of aging may all contribute to the current hearing loss present. Thus, the August 2012 VA audiologist concedes that military noise exposure has impacted the Veteran's hearing. Although the Board may not second-guess a medical expert based upon its own opinion, it cannot blindly accept an opinion that is not clear enough for a lay adjudicator to understand. Nieves-Rodriguez, 22 Vet. App. at 301. The August 2012 VA opinion will therefore not be afforded any weight in this matter. Turning to the March 2013 VA medical opinion, it is based entirely on the fact that at separation the Veteran's hearing thresholds were normal at 3000 and at 4000 Hertz. As noted above, this fact cannot be supported by the record, as the STRs do not contain a hearing threshold value at 3000 Hertz. The March 2013 VA opinion will therefore not be afforded any weight in this matter. Because the July 2013 VA opinion simply mirrors the March 2013 opinion, neither can it be afforded weight in the matter. Finally, with respect to the tenets set forth in the Hensley case mentioned above, where some upward shifting of hearing thresholds occurred during service, and/or where no disability is shown until years after service, VA must still consider whether the current hearing loss disability is due to service noise, or more properly attributable to intercurrent cause. In this case, the VA audiologist of August 2012 answered that question by conceding that military noise has played a part in causing this disability. After consideration of all the evidence of record, the Board finds that the evidence favors service connection for a bilateral hearing loss disability. The claim must therefore be granted. ORDER Service connection for a bilateral hearing loss disability is granted. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs