Citation Nr: 1332091 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-37 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1967 to April 1969, to include service in Vietnam from March 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in January 2009, a statement of the case was issued in August 2010, and a substantive appeal was received in September 2010. The Veteran appeared at a June 2012 video conference hearing at the RO. Although the appeal also originally included the issues of service connection for lumbar osteoarthritis, right lower extremity chronic venous insufficiency, left lower extremity chronic venous insufficiency, tinnitus, and erectile dysfunction, these benefits were granted by rating decision in August 2010 and are therefore no longer in appellate status. FINDING OF FACT The positive evidence is in a state of equipoise with the negative evidence on the question of whether the Veteran's bilateral hearing loss is causally related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The issue before the Board involves a claim of entitlement to service connection for bilateral hearing loss. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Certain chronic diseases (such as organic diseases of the nervous system, including sensorineural hearing loss) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). Other diseases initially diagnosed after service may also be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered 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 3 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 Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in- service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As noted by the Court: [W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385 . . . . For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for disability under 38 C.F.R. § 3.385, and (b) post- service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). The Board preliminarily notes that there is no controversy in this case with regard to whether the Veteran currently suffers from bilateral hearing loss disability for VA purposes. The evidence, including a July 2010 VA examination report, shows that the Veteran's bilateral hearing loss meets the criteria to be considered hearing loss disability for VA purposes. Additionally, the Veteran's in-service noise exposure has been conceded. The Veteran's DD 214 is of record, and confirms the Veteran's military occupational specialty (MOS) as an infantryman. Additionally, VA has already service-connected tinnitus based on noise exposure during service. A review of the Veteran's service treatment records show that on a pre-induction examination in October 1966, pure tone thresholds, in decibels, were as follows (when converted from American Standards Association (ASA) units to International Standards Organization (ISO) units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 X 0 LEFT 10 5 0 X 0 Speech recognition ability was not recorded. Also, the Veteran's Report of Medical History indicated his ears were normal. The service treatment records reflect that the Veteran was treated for an earache in November 1968. On April 1969 separation examination, the Veteran's pure tone thresholds were not reported. However, an undated audiogram is of record. Based on the handwriting and corresponding written numbers (presumably for identification purposes) on both the audiogram and the separation examination, the Board has concluded that the undated audiogram was contemporaneous with the separation examination. The audiogram showed hearing loss at 6000 hertz bilaterally. Post service, the first mention regarding the Veteran's hearing is contained in a January 2009 treatment record from M. McGrady, M.D. The treatment record noted that hearing loss has been going on for many years. It also noted that the Veteran did not have significant post-service noise exposure, except some occasional recreational shooting in which he reported wearing earplugs and earmuffs. The physician noted that there was no family history of hearing loss. A contemporaneous audiogram showed high-frequency, bilateral, sensorineural hearing loss, which was severe. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 50 LEFT 10 15 10 25 50 Speech audiometry revealed good discrimination with 100 percent in the right ear, and 96 percent in the left ear, and normal tympanometry. Dr. McGrady opined that the Veteran's hearing loss was consistent with noise exposure. A March 2009 letter from the Veteran's private physician, W. Feldner, D.O., noted the Veteran complained of chronic hearing loss since the age of nineteen. Dr. Feldner opined that this hearing loss was quite likely a result of concussive trauma from nearby explosions he was exposed to during his service. On July 2010 VA examination, the Veteran reported bilateral hearing loss with onset following an explosion in Vietnam, which left him unable to hear for three weeks. He reported exposure to excessive noise from artillery, machine gun fire, grenades, rifles, and pistols without hearing protection. The Veteran also reported that this hearing loss caused him difficulty hearing conversation on the telephone and at work. He denied a history of civilian occupational noise exposure, but reported recreational noise exposure from shooting once or twice a year with the use of earplugs. The Veteran denied a family history of hearing loss. On examination, pure tone thresholds indicated hearing sensitivity within normal limits through 3000 hertz sloping to a moderately severe sensorineural hearing loss in the right ear, and hearing sensitivity within normal limits through 2000 hertz sloping to a severe sensorineural hearing loss in the left ear. Word recognition scores were excellent bilaterally. The examiner concluded that based on the audiogram at separation, which showed normal hearing sensitivity at all ratable frequencies, the Veteran's hearing loss was not caused by or a result of military service. However, although the examiner opined that the audiogram showed normal hearing sensitivity bilaterally at the ratable frequencies, in discussing the Veteran's tinnitus, the examiner noted that the Veteran did show bilateral hearing loss at 6000 hertz frequency and that this hearing loss was the basis for his opinion that tinnitus had onset in service. He did not provide an explanation how, if at all, evidence of in-service hearing loss at the 6000 hertz frequency (or tinnitus) affected the Veteran's current hearing loss disability. At the June 2012 hearing the Veteran testified to noise trauma experienced in service, consistent with his MOS. He also testified that he noticed a degradation in his hearing following an explosion while in Vietnam. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."). He also confirmed that he did not have significant occupational noise exposure following separation from service as he was a mortician, and limited recreational noise exposure from shooting, in which he testified that he wore hearing protection. At this point the Board acknowledges that information obtained by the RO did not confirm the combat incident reported by the Veteran. Application of 38 U.S.C.A. § 1154(b) is therefore questionable. Nevertheless, after reviewing the evidence of record, although there is a negative etiology opinion expressed in the July 2010 VA examination report, the Board finds that the sum of the evidence is essentially in a state of equipoise with regard to the claim on appeal. The most negative evidence of record, the July 2010 VA examination report, found that the Veteran's current hearing loss was not caused by his military service because normal hearing was shown upon separation at the ratable frequencies. However, bilateral hearing loss was shown at the 6000 hertz frequency and although the 6000 hertz frequency is not considered for rating purposes, it still evidences that the Veteran experienced bilateral hearing loss at separation from service and it was this hearing loss that was the basis for the Veteran receiving service connection for tinnitus. The positive evidence supporting the Veteran's claim includes the Veteran's MOS, and credible testimony, in which the Veteran is shown to have served in a capacity involving significant acoustic trauma as an infantryman. Additionally, the January 2009 private audiologist's statement provides competent evidence supporting a finding that the Veteran's current hearing loss is of the type of hearing loss caused by noise exposure and can be attributable to inservice noise exposure. The Board acknowledges that not all of the evidence is supportive of the claim; however, upon a finding of relative equipoise of the positive and the negative evidence, , applicable law gives the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Service connection is therefore warranted. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency, in view of the fact that the full benefits sought by the Veteran are being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in August 2008, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for bilateral hearing loss is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs