Citation Nr: 1332648 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 12-19 902 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral sensorineural hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to October 1953. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2011 rating decision in which the RO, inter alia, denied service connection for bilateral hearing loss. Later that month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2012. In August 2013, the Board's Vice Chairman advanced this appeal on the Board's docket due to the appellant's advanced age. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). In August 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA). The requested opinion was received in October 2013. Although the Veteran and his representative have not received a copy of the opinion, followed by 60-days to submit additional evidence or argument, the Board finds that there is no prejudice to the Veteran in this regard, given the full grant of the benefit sought on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 3. The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes, and persuasive medical opinion of record on the question of whether this hearing loss is etiologically related to in-service noise exposure is, at least, in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Pertinent to the claim for service connection claim on appeal, given the favorable disposition of this claim, the Board finds that all notification and development action needed to fairly adjudicate such claim has been accomplished. II. Analysis The Veteran claims that he is entitled to service connection for bilateral sensorineural hearing loss due to noise exposure during his active duty service duties as a tank mechanic. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. In general, service connection requires competent evidence showing: (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). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). In adjudicating a claim for VA benefits, VA is responsible for determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The facts of this case may be briefly summarized. The Veteran served on active duty, from November 1951 to October 1953, in a heavy tank company as a tank mechanic. His report of unprotected noise exposure during active service, as described in a May 2011 VA audiology report, is deemed credible by the Board as it is consistent with his known circumstances of service. See 38 U.S.C.A. § 1154. The Veteran also appears to have had noise exposure as a result of his post service occupations involving use of machinery and power tools. See May 2011 VA audiology report. The results of audiometric testing conducted in conjunction with the May 2011 VA audiology evaluation establish that the Veteran has current bilateral hearing loss per VA standards. The VA audiologist opined that the Veteran's current bilateral hearing loss was unlikely related to military service. This opinion was premised, in part, upon a finding of a 15/15 Whispered Voice Test on the Veteran's October 1953 separation examination. The VA audiologist asserted that the Whispered Voice Test was pertinent as it only tested high frequencies. The Board, however, finds that the VA audiology opinion is based, at least in part, on a faulty premise and, therefore, has limited probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this respect, the Veterans Benefits Administration (VBA) has issued instructions to rating personnel specifically stating that a Whispered Voice Test cannot be considered as reliable evidence as to whether hearing loss was present in service as they were "notoriously subjective, inaccurate, and insensitive to the types of hearing loss most commonly associated with noise exposure." VBA Training Letter 10-02 (March 18, 2010). To remedy this deficiency, the Board sought opinion from a VHA otologist (an ear specialist). In the resulting opinion, which was received in October 2013, the reviewing physician-an otolaryngologist, or ear, nose and throat specialist-opined that the Veteran's service as a tank mechanic exposed him to acoustic trauma which damaged the inner ear Organ of Corti and at least as likely as not caused his bilateral hearing loss. In general, the Board notes that the absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In this regard, evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); see also 38 C.F.R. § 3.303(d). Regarding the etiology of the Veteran's bilateral sensorineural hearing loss and its relationship to his active duty service, the Board notes that the record currently contains conflicting opinions. As noted the record includes two competent, probative opinions. One from a qualified VA audiologist and the other from a VHA otolaryngologist. The opinion from the VA audiologist has less probative value as it relies on the results from a whispered voice test upon service separation as a basis of the opinion, which is not consistent with VBA guidance. The other opinion from the VHA otolaryngologist does not rely upon the whispered voice test as a reliable indicator of hearing loss. Additionally, the VHA otolaryngologist provides a medically sound basis for attributing the Veteran's bilateral hearing loss to service by identifying in-service noise exposure as causing damage to the Organ of Corti with resultant hearing loss. At the very least, the Board finds that the VHA otolaryngologist opinion places the claim in relative equipoise. While the physician's opinion was not definitive, it was provided in terms sufficient to permit application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the evidence outlined above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the record contains evidence of current bilateral sensorineural hearing loss disability, and competent, credible evidence of in-service noise exposure, which, when considered in light of probative medical evidence of record, provides a medically sound basis for linking this disability to noise exposure during his active duty service. As such, the Board concludes that the criteria for service connection for bilateral hearing loss are met. ORDER Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs