Citation Nr: 1331227	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  11-26 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. M. Kreitlow


INTRODUCTION

The Veteran had active military service from October 1956 to May 1960.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April and June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

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

Resolving reasonable doubt in favor of the Veteran, his current bilateral hearing loss is related to military noise exposure.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for bilateral hearing loss, which represents a complete grant of the benefit sought on appeal.  Thus, no discussion of VA's duty to notify and assist is necessary.

The Veteran is seeking service connection for bilateral hearing loss.  He contends his current hearing loss is related to noise exposure during his active service with the Air Force.  He has reported noise exposure from rifle fire during basic training and re-qualifying each year, jet aircraft on the flight line where he worked as a radio repairman, and flying in C130 aircraft approximately one time a month.

With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection:  "[I]mpaired 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.  

The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted.  38 C.F.R. § 3.385 does not necessarily preclude service connection for hearing loss that first meets the regulation's requirements after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service.  38 U.S.C.A. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60.  If medical evidence sufficiently demonstrates a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service and the requirements of 38 U.S.C.A. §§ 1110 are satisfied.  Hensley, 5 Vet. App. at 160.

The Veteran underwent VA examination in May 2010.  The puretone thresholds on audiometry testing did not meet the requirements for a hearing loss disability set forth in 38 C.F.R. § 3.385.  Nevertheless, the VA examiner diagnosed the Veteran to have mild high frequency sensorineural hearing loss in the right ear, but not the left.  In rendering an opinion, the examiner stated that, based on speculation and a technicality, it was her opinion that at least a portion of the Veteran's current hearing loss could be due to noise exposure while in the military.

The RO denied the Veteran's claim in the June 2010 rating decision because the VA examination failed to demonstrate a hearing loss disability for VA purposes.  The Veteran disagreed in June 2011 and submitted the report of a VA audiogram conducted at the VA Medical Center in St. Cloud, Minnesota, in May 2011, which showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
30
40
45
LEFT
25
25
25
40
40

Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 92 percent in the left ear; however, the word list used was the CIDW-22 rather than the Maryland CNC as required by VA regulation for rating purposes.

Based upon this audiometry report, the Veteran's claims file was returned for a new medical opinion, which was obtained in October 2011.  The examiner stated that, based upon the May 2011 audiometric testing the Veteran had bilateral sensorineural hearing loss.  The examiner gave two opinions with rationales as to whether the Veteran's current bilateral hearing loss would be related to service.  In "Rational[e] A," he quoted material from the Institute of Medicine as follows:  "The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.  Most recovery to stable hearing thresholds occurs within 30 days."  Current science indicates that the "understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely."  Furthermore, "the conclusion from review of the research in this area is that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing hearing loss."  The examiner stated, therefore, that if hearing is normal upon discharge, there is no evidence of hearing damage due to military noise exposure.  Any worsening of hearing from the time of discharge to current is due to noise exposure between the times of discharge to current.  This literature supports this assessment, even if a significant shift in hearing is found between entrance and exit audiometric testing.

In "Rational[e] B," however, the examiner stated that, if no audiometric testing is documented upon discharge, it is not possible to determine if noise induced hearing damage occurred in military service.  Giving the benefit of the doubt to the Veteran, the current hearing loss is due to military noise exposure.

In the present case, the Veteran's service treatment records are not available as they are presumed to have been lost in the 1973 fire at the National Personnel Records Center.  Consequently, there is no record of whether the Veteran underwent audiometric testing while in service and what his puretone thresholds were at the time of his discharge in May 1960.  The Board finds, therefore, that the October 2011 VA examiner's Rationale B opinion is what is applicable in the present case.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  Nevertheless, when, after considering all the evidence, a reasonable doubt arises regarding a determinative issue, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

In the present case, the Board finds that the Veteran's report of noise exposure in service is consistent with the types, circumstances and places of his service.  Therefore, the Board will concede the Veteran was exposed to noise in service.

Furthermore, the Board finds that, based upon the medical opinions provided by the two VA examiners, that a reasonable doubt has been raised as to whether the Veteran's present bilateral hearing loss is, at least in part, related to his military noise exposure.  Resolving such reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted and the Veteran's claim is, therefore, granted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs