Citation Nr: 1331116 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-17 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from November 1944 to October 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RU) in North Little Rock, Arkansas, which denied service connection for hearing loss because the evidence submitted was not new and material. In March 2011, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in July 2012. The Board in an April 2013 decision reopened the claim for service connection for hearing loss, and then remanded the claim for additional development. The reopened claim for service connection for hearing loss now returns to the Board for review. In February 2013 the Veteran presented sworn testimony during a travel board hearing in Little Rock, Arkansas, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that the Veteran's claims file has been converted to digital format and is accessed within the VBMS digital records system. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Please note 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 Affording the benefit of the doubt, the Veteran's bilateral hearing loss developed in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met; service connection is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. Because the benefits the subject of appellate review are here granted, there can be no prejudice resulting from any deficiency in the notice and duty to assist in the development of the Veteran's claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. General Laws and Regulations Governing Claims for Service Connection Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology may serve to support service connection for those disabilities listed within 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Certain diseases, including organic diseases of the nervous system potentially inclusive of hearing loss, may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). While medical evidence may be required to address questions of diagnosis or causation specifically requiring medical expertise, lay statements 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 which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a) ; Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Additionally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). III. Claim for Service Connection for Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. Service connection for tinnitus has already been established. The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). The service treatment records are negative for any complaints, findings, or treatment pertaining to hearing loss. During the Veteran's September 1946 separation examination, no ear abnormalities were noted and his hearing acuity was recorded as 15/15 bilaterally on the whispered voice test. The Board does not consider the findings of that whispered voice test to be probative in this case, because they have been recognized by VA as unreliable. See VBA Training Letter 211D (10-02), dated March 18, 2010 (stating that whispered voice tests "cannot be considered as reliable evidence that hearing loss did or did not occur. Whispered voice tests are notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure."). Thus, the claims file contains no objective evidence dating from service to establish or rule out hearing loss in service. The Veteran's Enlisted Record and Report of Separation reveals that his military occupational specialty was gun crewman, light artillery, and service personnel records indicate that his duties included cannoneer and gunner. VA treatment records dating since July 2005 show that the Veteran was diagnosed with and received treatment for bilateral sensorineural hearing loss, and had been issued bilateral hearing aids. In written statements, the Veteran asserted that he has experienced hearing loss since he served in an artillery unit in World War II. He stated that during service he had noise exposure from 105 Howitzers and 155 Long Toms, in addition to the rifle, pistol and machine gun training he underwent during infantry training. He indicated that he did not have hearing protection during service. The Veteran further said that he started receiving VA treatment in 1987 and his primary care manager noticed his hearing problem immediately and sent him to audiology where he was fitted with hearing aids. In support of his claim, the Veteran also submitted a written statement from his spouse in June 2008 in which she indicated that she had witnessed the Veteran experience hearing loss for the 61 years they had been married. The Veteran was provided with a VA audiological examination in October 2008. After reviewing the claims file, interviewing the Veteran, and performing an examination, the examining audiologist diagnosed the Veteran with mild to severe sensorineural hearing loss from 500 to 8,000 Hertz, bilaterally. The examiner stated that without service ear audiograms, it is not possible to determine if the Veteran's hearing loss is related to his military noise exposure versus his occupational and/or recreational noise exposure. The private treatment records were unrelated to the Veteran's hearing loss. The RO originally denied the Veteran's claim for service connection for hearing loss in May 2009 on the basis that the Veteran's service treatment records contained no evidence of complaints of, treatment for, or diagnosis of hearing loss and there was no medical evidence of record to show that his hearing loss was incurred in or caused by his military service. The Veteran provided material testimony during a February 2013 Travel Board hearing before the undersigned, that during service as a field artilleryman he fired 105 Howitzers and the 155 Long Tom, which is when he believes he sustained his hearing damage. He stated that he noticed his hearing loss during his time shooting the 155 Long Tom. The Veteran described how he experienced a deafness after firing the large guns as well as upon training on the obstacle courses with weapons firing nearby. He said that he did not seek treatment because he subsequently traveled on a ship to Okinawa until the war was over, when he went into Korea. He also related that his post-service occupation consisted of working on the farm. The Veteran's wife provided material testimony before the undersigned that she had witnessed the Veteran's history of hearing loss related to service over the course of their 66-year marriage. She asserted that they had adapted their lifestyle to his hearing loss. Upon VA hearing loss examination for compensation purposes in May 2013, the Veteran's complaint was noted of difficulty hearing conversation due to his bilateral hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 35 45 65 70 70 62 LEFT 35 40 70 70 75 64 Speech audiometry revealed speech recognition ability of 52 percent in the right ear and of 64 percent in the left ear. The examiner diagnosed sensorineural hearing loss bilaterally, but concluded that a medical etiology opinion related to noise exposure in service could not be rendered without resorting to speculation, because audiometric data from the Veteran's time in service was not available, and because everyone's hearing reacts differently from exposure to noise, with some experiencing hearing loss and others not. The examiner noted that the Veteran also had tinnitus, and opined that his tinnitus was at least as likely as not a symptom associated with his hearing loss. Upon careful review of the record, the Board concludes that the weight of the evidence favors the Veteran's exposure to significant acoustic trauma from firing large guns in his capacity as an artilleryman during World War II. While the Veteran was afforded two VA examinations addressing the question of etiology of current hearing loss as related to such in-service acoustic trauma, neither the October 2008 nor the May 2013 examiner was inclined to provide the requested etiology opinion, notwithstanding this in-service history of acoustic trauma, notwithstanding the absence of a history of significant noise exposure following service, and notwithstanding both the Veteran's and his wife's testimony addressing their contemporaneous knowledge of hearing impairment following acoustic trauma in service. The examiners did provide audiometric findings meeting the criteria for current hearing loss disability pursuant to 38 C.F.R. § 3.385 for each ear. Additionally, while VA examiners were unwilling to afford an affirmative opinion of service-related causation, they also did not rule out the possibility. The Veteran and his wife are competent to address symptoms of hearing loss over the period from service up to the present time. Jandreau. The Veteran is also competent to address the extent of perceived noise exposure in service and the perceived resulting hearing impairment at that time. Id. The Board finds the statements and testimony of the Veteran and his wife to be credible; the record as a whole does not present evidence adverse to the credibility of their statements in this case. Caluza. Thus, these lay statements serve to support both the occurrence of acoustic trauma in service and resulting hearing impairment from that acoustic trauma. Hearing impairment is judged by the Board to be amenable to lay perception, both by the Veteran suffering from the resulting impairment, and by his spouse and her perception of his failure to hear what is being said over an interval of time. The Board finds the evidence to be at least in equipoise, and affording the Veteran the benefit of the doubt, finds in the Veteran's favor on the question of service origin - as due to in-service acoustic trauma - of the Veteran's bilateral sensorineural hearing loss. 38 U.S.C.A. § 5107(b). Accordingly, the Board finds that service connection for the Veteran's currently diagnosed bilateral sensorineural hearing loss is warranted, based on the evidence being at least in equipoise. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs