Citation Nr: 1333002 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 13-01 896 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1958. The 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. In October 2011, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in November 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. In July 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. At the Board hearing, the undersigned granted the Veteran's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that with the exception of the Board hearing transcript, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue 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; such exposure, in part, formed the basis for an award of service connection for tinnitus. 3. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and there is competent evidence indicating that Veteran had diminished hearing in and since service discharge and continuing to date, as well as opinion evidence indicating that the Veteran's current bilateral hearing loss is medically related to in-service noise exposure. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 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) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the favorable disposition of the claim for service connection for bilateral hearing loss, the Board finds that all notification and development action needed to fairly adjudicate the claim have been accomplished. II. Analysis The Veteran contends that he is entitled to service connection for bilateral hearing loss. He avers that he was exposed to significant noise while working on the flight line in service, and that this acoustic trauma is the cause of his current and long-standing bilateral hearing loss. 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; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and an organic disease of the nervous system, such as hearing loss, becomes manifest to a degree of l0 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Hearing loss is considered a chronic disease of the nervous system, listed in section 3.309(a), and, thus, is subject to service connection based upon a showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013. In adjudicating a claim for VA benefits, 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 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). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. The Veteran's service treatment records reflect no complaint or diagnoses relating to noise exposure or hearing impairment. The Board observes that a January 1958 hearing conservation data documented noise exposure approximately eight hours a day while performing duties on the flight line. A medical history of tinnitus following noise exposure was given. On audiological evaluation, audiometric testing revealed that pure tone thresholds, in decibels, were as follows (converted to ISO (ANSI) units as shown in parentheses): HERTZ 500 1000 2000 3000 4000 Right -5 (10) -5 (5) 0 (10) 5 (15) 5 (10) Left 0 (15) 0 (10) 0 (10) 10 (20) 5 (10) Audiometric testing on the Veteran's August 1958 separation examination revealed pure tone thresholds, in decibels, at that time were as follows (converted to ISO (ANSI) units as shown in parentheses): HERTZ 500 1000 2000 3000 4000 Right 15 (30) 5 (15) 0 (10) 10 (20) 20 (25) Left 5 (20) -5 (5) -5 (5) 10 (20) 15 (20) The Veteran's ears were evaluated as normal at that time. Clearly the in-service testing results do not reflect hearing loss to an extent recognized as a disability for VA purposes. However, the absence of such evidence 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). Notably, the testing results at service separation do reveal an upward threshold shift from the entrance audiological evaluation in January 1958. Such a shift is consistent with the Veteran's assertions as to onset and injury. See Hensley, supra. The Veteran has described his duties as an aircraft mechanic working on the flight line, which exposed him to acoustic trauma and resulted in his hearing loss. The Veteran has asserted that his hearing loss began in service and has continued ever since. The Veteran's DD Form 214 lists his Military Occupational Specialty (MOS) as aircraft mechanic. Here, the Board finds that the Veteran's allegations of significant in-service noise exposure-which, in part, served as a basis for the RO's award of service connection for tinnitus-are credible and consistent with the circumstances of his military service. The Board further notes that there is additional competent lay and medical evidence that tends to support of the claim. At the time the Veteran filed his claim for service connection in October 2010,. In support of his claim, he submitted a November 2010 private opinion. The opinion indicated that the Veteran had been treated for bilateral hearing loss since his initial visit in 1996. On his initial visit, it was determined that the Veteran suffered from severe to profound high frequency sensorineural hearing loss. The medical provider opined that the characteristics of the Veteran's hearing loss lead the examiner to believe that it was very likely that the Veteran's hearing impairment was caused by exposure to loud noise over the years. However, while the medical examiner linked the Veteran's hearing loss to loud noise, the opinion did not clearly link the Veteran's hearing loss to his in-service noise exposure on the flight line. The Veteran was afforded a VA examination December 2010 by an audiologist. The claims file was reviewed, but the Veteran's service treatment records were not available. The Veteran essentially reported the same in-service noise exposure, as well as post service noise exposure of working in construction and going hunting. The Veteran indicated that his hearing loss and tinnitus began in service. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 20 35 70 85 105 Left 20 35 70 80 95 Speech recognition testing revealed a speech recognition ability of 64 percent in the right ear and 74 percent in the left ear. The examiner diagnosed normal to profound sensorineural hearing loss, bilaterally. However, the examiner was unable to render an opinion without resorting to speculation given the absence of service medical records. In May 2011, another VA examiner, who appears to be a medical doctor, reviewed the claims file and opined that it was less likely than not that the Veteran's sensorineural hearing was related to in-service acoustic trauma because separation audiogram was essentially normal in 1958 and hearing loss history dates to approximately 1996. The claims file also includes a September 2011 private opinion from another state licensed audiologist. The examiner reported that she had examined the Veteran and she also noted the Veteran's history of noise exposure in service due to working in close proximity with jet engines. She observed that single exposures to loud noise can impact hearing for a lifetime and sustained exposures certainly had the potential to impact hearing more severely. She also noted that the Veteran worked in construction after service. The examiner indicated that there were no standards to quantify when someone will demonstrate hearing loss during testing after long term noise exposure. Based on this analysis, she concluded that it was most likely that the Veteran's hearing loss began as a result of sustained exposure to B-47 engines. The attached audiogram revealed that, on testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 45 70 70 100 Left 15 30 70 75 100 Although it is unclear whether the Maryland CNC Test was used, speech recognition testing revealed a speech recognition ability of 68 percent in the right ear and 72 percent in the left. The examiner observed that pure tones revealed normal thresholds sloping to a mild to profound sensorineural hearing loss. At the Board hearing and his statements of record, the Veteran reiterated that he first noticed his hearing loss in service and it had continued since that time. He further reported that his spouse has also noticed a change in his hearing after service. In this case, the Veteran has met the criteria for a hearing loss disability under 38 C.F.R. § 3.385, as evidenced by the report of the December 2010 VA examination and testing results revealing an auditory threshold of 40 decibels or great in at least one of the frequencies and speech recognition ability of 64 percent in the right ear and 74 percent in the left ear. Thus, the record includes competent and credible evidence of significant in-service, assertions of noise exposure as well as findings of a current hearing loss disability. Nevertheless, regarding the etiology of the Veteran's hearing loss and its relationship to his significant noise exposure during active duty service, the Board notes that the record currently contains conflicting opinions. Although the May 2011 VA opinion was that the Veteran's hearing loss was not related to service, the author's rationale was based on a normal hearing audiogram in 1958 and no evidence of hearing loss until 1996. However, this rationale appears to be insufficient. The author failed to address the upward threshold shift documented in service. Further, the author failed to note or take into account that the private report clearly indicates that, when the Veteran first presented in 1996, he was already suffering from severe to profound high frequency sensorineural hearing loss, which would appear to indicate a prior history of hearing loss. Moreover, the author failed to address the Veteran's competent statements indicating that his hearing loss had its onset in service. The Board also finds it noteworthy that the opinion was not provided by the audiologist who actually examined the Veteran. As such, given these deficiencies, the May 2011 opinion has minimal probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). By contrast, as evidence in support of the claim, the Board notes that, in various written stated Further, in statements of record and at the Board hearing, the Veteran reported that he had hearing problems in service that have continued to the present. He has also claimed that his wife noticed his hearing loss following his active duty. Regarding the Veteran's assertions, the Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals. Thus, although the Veteran cannot diagnose a current hearing loss disability for VA purposes, he is competent to report that he began noticing hearing loss symptoms during service, and that he has continued to experience hearing loss since service to the present. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of diminished hearing in both ears since his discharge from active duty service, and the Board finds no reason to question the veracity of such statements. See Charles, 16 Vet. App. 370; Hayes, 5 Vet. App. at 69-70. Again, the Board also finds it significant that the Veteran has been awarded service connection for tinnitus based on his in-service noise exposure. Thus, there is competent and credible evidence to establish a likely continuity of symptomatology from service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Importantly, after examining the Veteran and taking a thorough medical history from him, the September 2011 private audiologist determined that the Veteran's hearing loss was most likely due to his in-service noise exposure. The examiner considered the Veteran's lay history of pertinent symptoms since service and the fact that he noticed decreased hearing soon after his separation from service. Given this evidence, she attributed the Veteran's current hearing loss to his service. Moreover, although the examiner did not specifically link the Veteran's hearing loss to in-service noise exposure, the November 2010 private opinion did link the Veteran's hearing loss to noise exposure as opposed to some other organic process. In sum, the evidence shows likely significant noise exposure in service with an upward threshold shift, current bilateral hearing loss to an extent recognized as a disability for VA purposes, and competent medical and credible lay evidence tending to show a link between the Veteran's in-service noise exposure and service . See 38 C.F.R. § 3.303(b); Walker (cited above). 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. Therefore, given the totality of the evidence-to include credible lay assertions as to injury, as well as onset, and continuity of symptoms, and supporting opinion evidence-and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for bilateral hearing loss are met. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs