Citation Nr: 1330611 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 08-01 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from November 1970 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which determined that new and material evidence had not been received to reopen service connection claims for bilateral hearing loss and tinnitus. In November 2007, the Veteran specifically expressed disagreement with the denial of service connection for hearing loss, and after the RO issued a statement of the case in December 2007, he perfected a timely appeal of that issue. In November 2011, this case was before the Board at which time the Board reopened the service connection claim for bilateral hearing loss and remanded the matter on the merits so that a VA examination could be provided to address the etiology of the Veteran's hearing loss disability. An examination was subsequently provided in December 2011. The directives of the Board's remand have been substantially complied with and the case is now returned for appellate review. The issue of whether new and material evidence has been received to reopen a service connection claim for tinnitus has been raised by the record via a December 2011 VA examination report, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The competent and probative evidence of record shows that the Veteran's bilateral hearing loss disability pre-existed his active duty service and was aggravated therein. CONCLUSION OF LAW Bilateral hearing loss was aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for bilateral hearing loss. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss. He contends that while he had hearing loss prior to service, his hearing loss deteriorated from the time of entry to the time of exit, as noted on the audiology examinations in service. He and his representative have also asserted that the March 2012 supplemental statement of the case is factually inaccurate and does not address the favorable findings in the December 2011 VA examination report. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307. Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . VA regulations provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If a pre-existing disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but a veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 (West 2002); see 38 C.F.R. § 3.306 (2011); Jensen, supra., at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). If the Veteran has a condition that pre-existed military service, the issue becomes whether the disease or injury was aggravated during service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. The presumption of aggravation can only be rebutted by clear and unmistakable evidence (obvious or manifest). See 38 C.F.R. § 3.306(b) (2011). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2011); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels 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. 38 C.F.R. § 3.385. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The service treatment records show that on his report of medical history dated in May 1970, the Veteran checked the box indicating that he had experienced ear, noise or throat trouble. On the May 1970 pre-induction examination report, a notation of decreased hearing is shown. Beginning in May 1970, the Veteran was put on a profile for bilateral high frequency sensorineural hearing loss, noise-induced. An H2 profile was given. As the record shows that decreased hearing was noted at entrance into service, the Veteran's service connection claim must be based on aggravation of the pre-existing disorder, rather than in-service incurrence. This means that the evidence must demonstrate a permanent worsening of the Veteran's pre-existing hearing loss as a result of the Veteran's military service. As noted, the Veteran has asserted that his hearing further deteriorated when he was in service, as evidenced by his audio evaluations in service. The audiology evaluation during the Veteran's pre-induction physical in May 1970 shows that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 - 45 LEFT 5 5 15 - illegible A second audiology evaluation at that time notes that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 40 LEFT 5 5 10 - 45 At the time of separation from service in January 1972, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 50 LEFT 15 15 20 - 60 At the time of separation from service an H3 profile was given. The audiology evaluations in service demonstrate a shift in auditory thresholds during the Veteran's military service, which supports his assertions that his hearing worsened during his military service. The Board further observes that the Veteran's military awards and decorations include, but are not limited to, an expert Rifle M-16 badge, an expert hand grenade badge, and a sharpshooter (rifle M-14) badge (see DD-214). Thus, his exposure to acoustic trauma in service is conceded. As the record shows an increase in the Veteran's hearing loss in service, the burden shifts to VA to establish that any such increase was not beyond the normal progression of the disease. After service, in November 1972, the Veteran underwent a VA audiological examination and was again diagnosed with high frequency hearing loss; but an opinion on whether the Veteran's hearing loss was aggravated in service was not provided. In December 2011, the Veteran underwent another VA examination to address the issue of aggravation of the Veteran's pre-existing hearing loss disability. The examiner evaluated the Veteran and determined that he had bilateral sensorineural hearing loss in both ears and also indicated a review of the claims file. The examiner determined that the Veteran's hearing loss existed prior to service and was aggravated beyond the normal progression in military service. The rationale was that there was hearing loss bilaterally at 4000Hz at induction in May 1970 and that there was a significant shift beyond normal loss at 4000Hz in the left ear at separation in January 1972. Thus, the examiner found that it would appear that the Veteran's existing hearing loss at induction was aggravated during the Veteran's military career. The examiner noted that the Veteran's DD Form 214 documented that he was an expert with M-14s, M-16s, and grenades. The Veteran also had stated that he did not recall ear protection ever being used. While the examiner only noted a threshold shift in the left ear during service, he did not limit his finding that the pre-existing hearing loss was aggravated during service to the left ear. Thus, the Board will interpret the opinion that the hearing loss was aggravated in service as incorporating both ears. It is also noteworthy that the service treatment records also document an auditory shift in thresholds in the right ear from induction to separation from service, as well. Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran's hearing loss was aggravated by his in-service noise exposure. In making this determination, the Board notes that the Veteran is competent to report the symptoms of hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is also competent to report that he was exposed to loud noises during service without hearing protection. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). In this regard, the Board highlights that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge whether he was exposed to noise during service and has experienced an increase in difficulty hearing during service. Moreover, the Board finds the Veteran's reports of in-service noise exposure and aggravation of hearing loss in service to be credible. His records are internally consistent, and it is facially plausible that he was exposed to noise during service, especially given his military awards and decorations including an expert rifle M-16 badge, an expert hand grenade badge, and a sharpshooter (rifle M-14). In this regard, the Board points out that the Veteran has consistently reported the incidents in service that aggravated his hearing loss. As such, the Board finds that the Veteran's statements are credible and probative, and add weight to the overall claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996); see also Walker, supra. The Board also finds it significant that an audiologist after reviewing the claims file has determined that the Veteran's current hearing loss was aggravated by his military service. The audiologist considered the extent of noise exposure shown in the Veteran's personnel records and the shift in auditory thresholds from induction to separation from service. After a careful review of the all of the medical and lay evidence of record, the Board, in its role as a finder of fact, finds that the Veteran's reports of in-service noise exposure, evidence in service of shifts in auditory thresholds, and the medical opinion finding that the Veteran's hearing loss was aggravated in service are persuasive evidence in favor of service connection. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for bilateral hearing loss is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs