Citation Nr: 1331240 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-05 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran had active military service from August 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. Jurisdiction is currently with the RO in Detroit, Michigan. On his February 2008 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran requested that he be afforded a hearing before a member of the Board, sitting at the RO. As noted in a Report of Contact (VA Form 119), dated May 28, 2009, the Veteran reported that he would be unable to attend the scheduled Travel Board hearing due to health problems. The Veteran was rescheduled for a videoconference hearing to be conducted on November 19, 2009. On November 5, 2009, the Veteran notified the RO that he would be unable to attend his scheduled hearing on account of physical disability. The Veteran indicated his desire to withdraw his hearing request. Accordingly, the Veteran's request for a hearing before a member of the Board is considered withdrawn. 38 C.F.R. § 20.704(e) (2013). In August 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain an addendum to a VA medical opinion. The action specified in the August 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Bilateral hearing loss as likely as not is etiologically related to the Veteran's military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see 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. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic the only avenue for service connection is by showing in-service 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). Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may 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) (2013). A "hearing loss" disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2013). For 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, 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 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran is seeking entitlement to service connection for bilateral hearing loss. The Veteran has reported that he was subjected to acoustic trauma in service from mortars, rockets, artillery, grenades, explosives, gunfire, and heavy equipment and that he did not wear ear protection in service. The Veteran's account of noise exposure in service is consistent with his military occupational specialty (MOS) of combat demolition specialist, as well as his service in Vietnam. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event.). In his October 2006 claim, the Veteran alleged that he has had problems with his hearing since service. However, the Veteran's service treatment records are negative for any complaints of or treatment for hearing loss and he denied any hearing loss on a Report of Medical History completed at separation from service. Service treatment records show that on the Veteran's pre-induction examination in December 1966, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) NR 10 (15) LEFT 10 (25) 10 (20) 10 (20) NR 10 (15) Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO/ANSI) units. Here, the numbers in parentheses are the reported puretone thresholds converted to ISO/ANSI units. During the Veteran's April 1969 separation examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 NR 5 LEFT 5 0 0 NR 5 Post-service, there is no evidence of any complaints of or treatment for hearing problems for more than thirty years after service. At a January 1998 evaluation at William Beaumont Hospital, the Veteran's hearing was intact and he denied tinnitus. A November 2004 VA audiological evaluation appears to be the earliest post-service objective evidence of a hearing loss disability. The Veteran's hearing was tested and the results of an audiogram that recorded the Veteran's puretone auditory thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 15 20 50 LEFT 30 25 20 25 55 These results demonstrate that the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2012). At issue is whether the Veteran's current disability is related to his in-service noise exposure. In July 2007, the Veteran underwent a VA audiology examination. At that time, the Veteran reported in-service noise exposure as a combat engineer in Vietnam, occupational noise exposure as a UPS driver, and recreational noise exposure as a hunter. The examination report included the results of an audiogram that recorded the Veteran's puretone auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 25 25 60 LEFT 45 30 20 30 65 The Veteran had speech recognition scores in each ear of 88 percent. Prior to rendering that opinion, the VA audiologist reviewed the claims folder and noted that the Veteran's hearing at enlistment and separation was normal bilaterally, based on the audiograms of record. The examiner ultimately concluded that it was not at least as likely as not that the Veteran's hearing loss was related to his military noise exposure. The examiner did not provide any rationale for her conclusions, but it appears that the VA audiologist's negative nexus opinion was based only on the fact that the Veteran did not demonstrate hearing loss upon discharge from service. The Board notes that the onset of hearing loss after service does not preclude a finding of service connection if it can be shown by all of the evidence, including that pertinent to service, that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012); see Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Further, it is unclear whether the audiologist specifically considered the impact of the Veteran's in-service noise exposure. Given the fact the VA audiologist failed to attribute the Veteran's hearing loss to any other occurrence or discuss why delayed onset hearing loss might weigh against a finding that such hearing loss was related to service, the VA audiologist's opinion is incomplete and not supported by an adequate rationale. Accordingly, the Board referred the case back to the examiner for an addendum opinion. In September 2011, the examiner explained that the Veteran's hearing loss is less likely than not related to military noise exposure because the Veteran's hearing was normal at both enlistment and separation from service and "there is no scientific basis for the delayed onset of hearing loss following noise exposure." She cited to the Institute of Medicine Landmark Study on Noise Exposure for the finding that hearing loss occurs contemporaneous to acoustic trauma. The VA audiologist further opined that the Veteran's current hearing loss is most likely due to a combination of post-service occupational noise exposure, recreational noise exposure, and the aging process. In November 2011, the Veteran submitted a medical opinion from his primary care physician, Dr. N.W., who noted that he had been asked to provide a medical opinion as to whether the Veteran's hearing loss could be due to, or is at least as likely as not due to, noise exposure the Veteran experienced while serving as a demolition specialist in Vietnam even though it was not documented at the time of his separation from the military in April 1969. Dr. W. expressed the opinion that the Veteran's hearing loss was due to his in-service noise exposure. The Board finds that there is evidence both for and against the Veteran's claim. On one hand, the Veteran had significant noise exposure in service and has competently testified that he experienced a noticeable loss of hearing in service and since that time. The Veteran's primary care physician has also opined that the Veteran's hearing loss is related to his military noise exposure despite the fact, as he noted, that audiological testing on separation indicated that the Veteran's hearing was within normal limits. The Board notes further, that the separation findings appear to be significantly out of line with the 1966 pre-induction examination, as demonstrated above. Such inconsistency reduces the reliability of the separation examination findings and lends credence to the Veteran's statements that he did have a noticeable hearing loss on separation from service that progressed. See February 2008 VA Form 9. If the separation examination findings are not an accurate representation of the Veteran's hearing at the time, then the explanation of the September 2011 VA examiner that the Veteran's hearing loss was due to post-service occupational and recreational noise exposure because of the normal audiological findings on entrance and separation would be entitled to little probative weight. On the other hand, the September 2011 VA examiner has concluded that the Veteran's current hearing loss disability is unrelated to service, as his hearing was normal at separation from service and there is no scientific basis for delayed onset hearing loss. Further, there is an absence from the record of post-service documented hearing loss for years after the Veteran's separation from service. However, the Board notes that the 2011 VA examiner does not address the discrepancy in the findings between the December 1966 pre-induction examination and the April 1969 separation examination, which arguably is an accurate representation of the Veteran's hearing, nor does the examiner address the Veteran's competent and credible assertion that he had noticeable hearing loss since service. See Walker, supra. Such matters diminish the probative weight accorded the VA examiner's opinion. Accordingly, in considering the in-service noise exposure, the competent lay evidence of in-service onset of hearing loss, the November 2011 positive nexus opinion, and by affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has bilateral hearing loss that is traceable to military service. As the law requires that the benefit of the doubt is provided to the Veteran, entitlement to service connection for bilateral hearing loss is granted. See 38 U.S.C.A §5107 The Duty 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 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