Citation Nr: 1331660 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-27 008 ) 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: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from May 1968 to October 1969. The Veteran also served in the Kentucky National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. On his VA Form 9, the Veteran indicated that he wanted to testify at a Board hearing. However, in a December 2009 written statement, the Veteran's representative withdrew the hearing request. Therefore, the Board may proceed with a decision. FINDING OF FACT The evidence is at least in relative balance as to whether the Veteran's bilateral hearing loss is etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for bilateral hearing loss. This represents a complete grant of the benefit sought on appeal for this issue. Thus, any deficiency in VA's compliance with this issue is deemed to be harmless error and any further discussion of VA's responsibilities is not necessary. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). To establish service connection for a present disability, the Veteran must show: (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). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). For the 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 500, 1000, 2000, 3000, or 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 (2013). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that his bilateral hearing loss is related to active service. Concerning evidence of a current disability, the VA audiogram performed in connection with the July 2008 VA examination reflects a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Accordingly, the Veteran has a current disability. With respect to evidence of incurrence of an in-service disease or injury, the service treatment records do not reflect treatment or findings of hearing loss during active service. An October 1969 separation report of medical examination shows the Veteran's ears were clinically evaluated as normal and the audiometric findings were within normal limits. An October 1969 separation report of medical history reveals that the Veteran checked the box "No" when asked if he ever had or presently had hearing loss. Nonetheless, the Veteran has attested to being exposed to high levels of noise during his period of active service. The DD Form 214 reflects that the Veteran's military occupational specialty (MOS) was "personnel specialist." However, the Veteran served with a Field Artillery Battalion during his period of active service. He stated that he spent anywhere from two to five days per week as a loader on a 155 Howitzer. He stated that this typically involved fifteen to twenty five fire missions per week. A single fire mission lasted 15 minutes to one hour. The service records show that the Veteran was assigned to an Artillery Battalion. The Board finds the Veteran competent and credible to attest to his noise exposure and there is no evidence to question the veracity of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board accepts the lay statements of in-service noise exposure as evidence that he was exposed to acoustic trauma during service and, therefore, the requirement for an in-service injury has been met. With respect to the etiology of the Veteran's bilateral hearing loss, there is both positive and negative evidence. The Veteran was provided a VA examination in July 2008. The examiner reviewed the claims file. The Veteran reported that he served in the Army in a field artillery unit and provided a history of military noise exposure from firing weapons in Vietnam. He also reported a history of occupational noise exposure working for an electric generating power plant. He reportedly wore hearing protection consistently. He also reported noise exposure from hunting in the past. The examiner noted that the Veteran had bilateral sensorineural hearing loss. The examiner opined: "It is not likely that [the Veteran's] current hearing loss is due to his military service." The examiner's rationale was that the hearing levels were within normal limits when he separated from the military in October 1969. However, the VA examiner's explanation as to why the Veteran's hearing loss is not due to military service is flawed. The sole rationale for the VA examiner's opinion is that the Veteran's separation report of medical examination showed normal hearing levels. However, the United States Court of Appeals for Veterans Claims (Court) has held that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the medical opinion is of little evidentiary value because it lacks supporting analysis that the Board can weigh against contrary evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In support of the Veteran's claim for service connection, his private physician, Dr. Kimberly D. Bowen, submitted letters dated April 2008 and December 2008. In the April 2008 letter, Dr. Bowen explained that the Veteran reported that he served as a loader for a 155 Howitzer firing sometimes for as long as one hour per fire mission. The fire missions occurred two to five times per week. Dr. Bowen explained that the pure tone testing revealed a bilateral notch-shaped moderately severe neurosensory hearing loss worse in the left ear. He reported that his left ear was typically turned to face blast. Dr. Bowen stated that the recovery of hearing at 8000 Hertz was typical of acoustic trauma and the configuration of the loss was "consistent with acoustic trauma." She opined: "his neurosensory hearing loss and tinnitus were very likely caused by his military noise exposure." In the December 2008 letter, Dr. Bowen stated that she reviewed the Veteran's complete medical file and records. She reiterated that the Veteran served in Vietnam with an artillery unit and fired the 155 Howitzer. The Veteran stated that he noticed muffling of hearing when exposed to repeated firing of his weapon and his hearing would improve after hours in quiet. Dr. Bowen stated that this accurately described a temporary threshold shift found with acoustic trauma and repeated exposures to loud sounds make the loss permanent. Dr. Bowen explained that the Veteran's reported noise exposure was sufficient to cause acoustic trauma. Dr. Bowen noted: "The separation papers do not list a frequency-specific audiometric evaluation so it is not possible to determine if there was high-frequency hearing loss at his discharge." She stated that high-frequency neurosensory loss and its configuration are expected with acoustic trauma and opined that his hearing loss was very likely caused by his military noise exposure. In assessing the probative value of Dr. Bowen's opinion, the Board first acknowledges Dr. Bowen's statement that the separation report of medical examination did not reflect a "frequency-specific" audiometric evaluation. However, the October 1969 separation report of medical examination reflected audiometric findings at 500 Hertz, 1000 Hertz, 2000 Hertz, and 4000 Hertz. It is unclear as to whether Dr. Bowen was referring to another examination or whether she was indicating that there were no findings with respect to 6000 Hertz or 8000 Hertz. Nonetheless, the Board finds Dr. Bowen's opinions to be highly probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). She specifically described the Veteran's hearing loss as a "bilateral notch-shaped moderately severe neurosensory hearing loss" consistent with noise exposure. She noted that the hearing loss was worse on the left side-which was consistent with the Veteran's reports that his left ear was typically turned toward the blast. Dr. Bowen also discussed the Veteran's competent and credible statements and found it "very likely" that the Veteran's hearing loss was caused by his military noise exposure. Thus, the Board finds that the evidence is at least in relative balance as to whether the Veteran's bilateral hearing loss is etiologically related to active service. While the Board could remand for another opinion, the Board finds the medical evidence sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). In resolving the benefit of the doubt in favor of the Veteran, the Board finds that bilateral hearing loss is etiologically related to active service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs