Citation Nr: 1330202	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  11-01 411	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and Witnesses


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from March 1963 to September 1963.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law Judge at a hearing held in August 2012.  A transcript of the hearing is of record.


FINDING OF FACT

Resolving doubt in the Veteran's favor, bilateral hearing loss had its onset in service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active military service.  38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).
 

REASONS AND BASES FOR FINDING AND CONCLUSION

The grant of service connection for hearing loss constitutes a full grant of the benefits sought.  As such, no discussion of VA's duty to notify or assist is necessary. 

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active military service.  38 U.S.C.A. § 1110. 

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) (2012).  ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state.  38 U.S.C.A. § 101(21), (22) (West 2002); 38 C.F.R. § 3.6(c)(1) (2012). 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a).  Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  

For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Hearing loss for the purpose of VA disability compensation is considered 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. 

To establish service connection for hearing loss, a Veteran is not obliged to show that his hearing loss was present during active military service.  However, if there is insufficient evidence to establish that this chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO) American National Standards Institute (ANSI).  In order to facilitate data comparison, the ASA standards used during the Veteran's period of service have been converted to ISO-ANSI standards for the purposes of adjudication.  

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

The Veteran seeks service connection for hearing loss.  The Veteran has testified that during service he was loading ammunition onto a M48 tank when a round was fired from the tank.  He stated that he was knocked onto the ground by the discharge and could not hear a thing.  He testified that his sergeant took him to the Ireland Army Hospital, which was just across the parking lot from the barracks, and the sergeant's friend evaluated him.  The Veteran indicated that this individual ran a hose in his mouth and blew "a big compression of air."  He further testified that in 1964 he reported to his physical examination for the draft and was told to go home after his hearing test was conducted.

The Veteran's wife has testified that she and the Veteran married in August 1963 and she was aware of his hearing difficulty at that time.  She further testified that the Veteran's hearing became worse over time and he also complained of ringing in his ears.  She indicated that the Veteran used over-the-counter general hearing amplification devices from 1963 onward.

Service records reveal the Veteran's military occupational specialty was armor crewman.  Service treatment records are negative for complaints or findings of hearing loss.  The Veteran's January 1963 enlistment examination showed whispered voice test was normal; the report did not include the decibels or thresholds.  The August 1963 separation examination showed puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, and 4000 Hertz were 10 (25), 10 (20), 10 (20), and 10 (20), respectively, in the RIGHT ear; and 10 (25), 10 (20), 10 (20), and 10 (20), respectively, in the LEFT ear.  The frequency of 3000 Hertz was not tested. 

A service record from the Kentucky Army National Guard (KYARNG) dated July 1, 1964, shows that the Veteran was physically qualified from induction into the Army for physical reasons, the week prior.  Upon a request for further information by the Veteran's commanding officer in the KYARNG, it was discovered that his physical profile serial (PUHLES) showed a "3" for hearing; physical category was "J;" and #71 (Audiometer) showed a finding of "deafness."  He was discharged from the KYARNG based on these findings.

At a VA audiology examination in September 2010, the Veteran reported that a tank was fired near him during service.  He indicated that he was knocked off of his feet by the weapon's discharge and could not hear for two days afterward.  He reported that he had experienced tinnitus and hearing loss since that incident.  He denied any excessive recreational or occupational noise exposure post-service.  The examiner opined that the current bilateral hearing loss disability is unrelated to military service.  The examiner based her opinion solely on the fact that the Veteran's hearing acuity was normal at discharge.  

In an April 2011 addendum, the VA examiner opined that the bilateral hearing loss is unrelated to military service.  The rationale was that the separation audiogram showed normal hearing at all frequencies.  The examiner noted that an enlistment examination was not performed, but the Veteran's hearing was so good at the time of separation that it is unlikely a threshold shift occurred.

In August 2012, a private audiologist provided a medical opinion in support of the Veteran's claim.  The audiologist indicated that he was aware of the Veteran's reported military history; specifically, the incident in which a tank was fired near him causing hearing loss for two days, the treatment the Veteran reportedly he had received (i.e. the hose and compressive air blast), and the Veteran's use of hearing aids since that time.  The audiologist noted that the Veteran had probably sustained bilateral ear perforations.  He opined that the Veteran's diminished hearing is secondary to the "blast" injury he sustained from the tank being fired.

After reviewing the available evidence, and resolving in any remaining doubt in favor of the Veteran, service connection for hearing loss is warranted.  A current hearing loss disability has been established based on the September 2010 VA examination report.  Given the Veteran's military occupational specialty, he was likely exposed to acoustic trauma while in service.  Such exposure is consistent with the circumstances and conditions of that occupational specialty.  38 U.S.C.A. § 1154(a).  Furthermore, the Board has found no reason to doubt his report of having been in close proximity to a tank that was fired during basic training.  It is also noted that the Veteran is service-connected for tinnitus based on his this reported incident.

The Board finds that both the September 2010 opinion and the April 2011 addendum are insufficient for adjudication of the claim as the examiner based her opinions solely on the fact that the Veteran's hearing acuity was normal at discharge.  The absence of documented hearing loss in service is not fatal to a service connection claim for hearing loss.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  In addition, the Board observes that the audiogram results recorded at the September 1963 separation examination presumably were under the ASA standards as the audiogram was conducted before 1967.  However, the examiner appears to not have converted the September 1963 audiogram results, and it is not known whether such a conversion would have affected her opinion.  In this respect, the Board notes that the threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level (such as the showing of Veteran's 25 decibels at 500 Hertz, and 20 at 1000, 2000, 3000, and 4000 Hertz) does indicate some degree of hearing loss, although not necessarily a hearing loss disability under 38 C.F.R. § 3.385.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

The August 2012 private audiology opinion is favorable to the Veteran's claim.  While it is not accompanied by a clinical rationale explaining the basis for the audiologist's opinion, at the very least, it serves to place the matter of causal nexus in relative equipoise.  Moreover, the Army National Guard records, and the Veteran's competent and credible hearing testimony of diminished hearing acuity since 1963 (i.e. continuity of symptomatology), strongly support a finding of a causal nexus in this case.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Reasonable doubt is resolved in favor of the Veteran, service connection for bilateral hearing loss is granted.  38 U.S.C.A. § 5107(b). 



ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs