Citation Nr: 1333025	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-50 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARINGS ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1966 to December 1967.  This included service in the Republic of Vietnam (RVN), for which he received the Combat Infantry Badge (CIB) and a Purple Heart.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  It was determined therein that reopening of a previously denied service connection claim for bilateral hearing loss was not warranted.  The Veteran appealed this determination.

In January 2009, the Veteran testified at a Decision Review Officer hearing.  A videoconference hearing before the undersigned was conducted in January 2011.  The Board reopened the Veteran's previously denied claim in March 2011.  Service connection was remanded for additional development at that time and again in January 2012.  Currently, at this time, adjudication may proceed.  The following decision is based on review of the Veteran's paper claims file in addition to his Virtual VA electronic claims file.


FINDING OF FACT

The Veteran's current bilateral hearing loss is related to his exposure to loud noise during service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1111, 1153, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating entitlement to VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, discussion of these duties is not necessary because service connection for bilateral hearing loss is granted herein.  As this decision is favorable to the Veteran, it follows that any errors that were have been made regarding the aforementioned duties were harmless.  Also, any errors made with respect to ensuring at least substantial compliance with the Board's previous remands were harmless for this same reason.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999).

Service Connection

Service connection means that an injury or disease resulting in disability was incurred in active service, or if preexisting active service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish service connection, there generally must be a current disability, the in-service incurrence or aggravation of an injury or disease, and a nexus between the current disability and the in-service disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Service connection also is established for any disease that is diagnosed after discharge when the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d).

As an organic disease of the nervous system, sensorineural hearing loss is a chronic disease.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  For chronic diseases, service connection additionally may be established through chronicity or continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Subsequent manifestations of the same chronic disease shown during service at any later date may be service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b); Barr, 21 Vet. App. at 303.  Continuity of symptomatology after service is required if the disease is noted during service but is not chronic or where the determination that it is chronic is questionable.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Finally, service connection is presumed for chronic diseases when service was for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within one year from the date of discharge.  38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), (c).  Evidence rebutting the in-service origin of the disease must be taken into consideration, however.  38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a).

The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence (also known as non-medical evidence) may be discounted in light of inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  

When there is an approximate balance of positive and negative evidence regarding any point, the claimant is afforded the benefit of the doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.  The claimant thus prevails on that point when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim.  Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

It is undisputed in the current appeal that the Veteran has bilateral hearing loss.  A current disability exists when one is present at the time a claim is filed or at any time during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran filed the instant claim in January 2008.  A VA examination conducted prior thereto in June 2005 contains a diagnosis of bilateral sensorineural hearing loss.  This same diagnosis also was made upon VA examination dated thereafter in February 2012.  It further is reflected in March and April 2009 VA treatment records.  A July 2011 VA examination diagnosed bilateral mixed, or a combination of sensorineural and conductive, hearing loss.  Finally, an April 2008 letter from private Dr. R.S. and a January 2009 letter from private hearing aid specialist C.P. reference hearing loss without specifying the type.  Pure tone threshold from the VA examinations and VA treatment records, in addition to speech recognition tests from the last two VA examinations, show that the Veteran's hearing loss arises to the level of a disability.  38 C.F.R. § 3.385.

With respect to an injury during service, the Veteran contends he suffered acoustic trauma due to exposure to loud noise from weapons and artillery fire.  He is a lay person since there is no indication that he has a medical background.  A lay person is competent to relate observations or that which is within his personal knowledge.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran is competent to recount being exposed to loud weapons and artillery fire during service since such would have happened to him personally.  He also is credible.  Competent lay evidence may be discounted due to factors such as interest, self-interest, bias, internal inconsistency, inconsistency with the other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  Here, it is not necessary to consider most of these factors since in-service loud noise exposure is facially plausible and consistent with the other evidence.

Due consideration shall be given to the circumstances of a Veteran's service, particularly combat service.  38 U.S.C.A. § 1154; 38 C.F.R. § 3.304(d).  The Veteran is presumed to have engage in combat during service given his receipt of the CIB and a Purple Heart.  VA Adjudication Procedure Manual, Part IV, Subpart ii, Chapter 1, Section D, 13.e.  His training to prepare for combat as well as the combat itself undoubtedly placed him in close proximity to loud weapons and artillery fire.  Inferred from a January 2006 rating decision which granted service connection for right ear tinnitus is that the RO conceded in-service loud noise exposure on this basis.  For the aforementioned reasons, it is conceded once again at this time.

Regarding a disease during service, service treatment records show that the Veteran was given a rating of 1 for his hearing and ears on the PULHES (physical capacity/stamina, upper extremities, lower extremities, hearing and ears, eyes, psychiatric) profile, indicating a high level of fitness, at his November 1965 entrance examination.  Odiorne v. Principi, 3 Vet. App. 456 (1992).  Indeed, no hearing impairment was referenced.  Yet, the pure tone thresholds at 500 and 2000 Hertz in the right ear, after conversion of the results documented at that time pursuant to the standards set by the American Standards Association to comport with the standards set by the International Standards Organization-American National Standards Institute which have been used since November 1, 1967, were above the normal range of 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155 (1993).  They indeed was 30 and 25 decibels respectively.  It is presumed that a Veteran was in sound condition when examined for entrance into service except as to defects noted at that time.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Noted means only such defects as are recorded in an examination report.  38 C.F.R. § 3.304(b).  Despite the PULHES profile and lack of reference to hearing impairment, right ear hearing loss was noted here via the pure tone thresholds.

The presumption of sound condition does not apply regarding hearing in the Veteran's right ear based on the above.  However, the pure tone thresholds from his entrance examination have been called into question.  Neither the examiner who conducted the June 2005 VA examination, the examiner who conducted the July 2011 VA examination, nor the VA ear, nose, and throat (ENT) nurse who rendered an opinion following this latter examination addressed this point, but the examiner who conducted the February 2012 VA examination did.  The hearing loss reflected by the entrance examination was characterized as mild in a March 2013 addendum examination report.  Only the pure tone threshold of 30 decibels at 500 Hertz was mentioned in this regard.  Yet, since the pure tone threshold of 25 decibels at 2000 Hertz is even lower, it also is most appropriately classified as mild.  The report then accurately indicates that pure tone thresholds from the Veteran's mid-November 1967 separation examination were normal bilaterally.  That permanent sensorineural hearing loss does not improve over time next was set forth.  The entrance examination results showing worse hearing in the right ear than the results from the separation examination therefore were deemed questionable.  If the Veteran's hearing in his right ear actually was normal at his entrance examination as it was at his separation examination, the presumption of sound condition would apply.

It is unclear, in sum, whether or not the presumption of sound condition applies for the right ear.  The inquiry thus could be whether or not the Veteran's current right ear hearing loss corresponds to aggravation of his preexisting right ear hearing loss due to loud noise exposure during his service.  If so, a preexisting disease is presumed to have been aggravated by service when it increases during service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  An increase means a lasting worsening.  Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Routen v. Brown, 10 Vet. App. 183 (1997); Hunt v. Derwinski, 1 Vet. App. 292 (1991).  VA bears the burden of showing that there was no increase or that it was due to natural progression.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Horn v. Shinseki, 25 Vet. App. 231 (2012); Laposky v. Brown, 4 Vet. App. 331 (1993).  The inquiry also could be whether or not the Veteran incurred his current right ear hearing loss as a result of loud noise exposure during his service.  Further discussion aimed at determining which inquiry is appropriate is unnecessary because the decision made herein is favorable to the Veteran.  The inquiry for the left ear is whether or not he incurred his current left ear hearing loss as a result of loud noise exposure during his service.

Clearly, the Veteran believes that his left ear hearing loss is due to his in-service loud noise exposure.  He also clearly believes the same regarding his right ear hearing loss or that it represents aggravation of his preexisting right ear hearing loss due to in-service loud noise exposure.  Lay evidence can sometimes be sufficient to prove nexus.  Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the question of nexus in this case falls outside the province of a lay person.  It rather is a medical question given the complexities involved.  The Veteran mostly has been diagnosed with sensorineural hearing loss, but only was diagnosed with mixed hearing loss.  He denied civilian occupational as well as recreational exposure to loud noise at the July 2011 and February 2012 VA examinations but reported such at the June 2005 VA examination, for example.  That there are numerous causes at least of sensorineural hearing loss, one of which is loud noise exposure, is well-known.  Only those with medical expertise are competent where the determinative issue is one of medical nexus.  Jones v. West, 12 Vet. App. 460 (1999).  Therefore, the Veteran is not competent to establish nexus.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372.  His credibility in this regard accordingly need not be considered.

Several medical opinions are of record.  The examiner who conducted the June 2005 VA examination, an audiologist, and the VA ENT nurse who considered this matter following performance of the July 2011 VA examination by an audiologist, both essentially opined that the Veteran's current bilateral hearing loss is not likely caused by or a result of his service to include loud noise exposure therein.  Each indicated that the separation examination was normal bilaterally.  The ENT nurse further identified a combination of age-related presbycusis and civilian occupational as well as recreational loud noise exposure as the etiology.  The examiner who conducted the February 2012 VA examination, an audiologist, noted that hearing loss occurs at the time of loud noise exposure and that it can be either temporary or permanent.  It was determined in the March 2012 addendum examination report that to opine on whether or not the Veteran's current bilateral hearing loss is related to his in-service loud noise exposure would require resorting to mere speculation.  That the separation examination was normal once again was highlighted as support for the proposition that a relationship is less likely than not.  Yet, the pure tone thresholds from this examination were called into question due to the aforementioned discrepancy with those from the entrance examination.  On the private side, Dr. R.S. opined in the April 2008 letter that the Veteran's current bilateral hearing loss "may have been caused" by his in-service loud noise exposure.  C.P. opined in the January 2009 letter that the Veteran's current bilateral hearing loss is "more likely than not caused by his" combat, which as discussed above included loud noise exposure, during service.  His contention that his separation examination included only a whisper hearing test as opposed to a test of pure tone thresholds was noted.

Like competent lay evidence, a medical opinion may be discounted due to factors such as the qualifications and expertise of the opiner, the scope of the assessment, review of pertinent evidence, the accuracy of the factual premises underlying the opinion, the rationale provided for it, and degree of certainty in it.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993).  This is true even with respect to the determination that an opinion is not possible without resort to speculation, as it is a medical conclusion just as much as a positive or negative opinion.  Jones v. Shinseki, 23 Vet. App. 382 (2010).  Each of the aforementioned medical opinions was rendered by someone with adequate qualifications and expertise.  Everyone with the exception of Dr. R.S., for which no specialty was noted, work extensively with hearing loss.  All of the VA examiners conducted a thorough assessment of the Veteran's hearing.  C.P.'s letter conveys the same, but it is unclear from Dr. R.S.'s letter whether or not the Veteran's hearing was assessed thoroughly, somewhat, or not at all.  All of the VA examiners as well as the VA ENT nurse reviewed the Veteran's paper claims file.  C.P.'s letter conveys review of the Veteran's service entrance and separation examinations.  Dr. R.S.'s letter does not convey review of any pertinent evidence.  All of the opinions with the exception of Dr. R.S.'s finally were expressed in certain terms.  Use of "may" and similar language indeed has been deemed insufficient.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bostain v. West, 11 Vet. App. 124 (1998); Goss v. Brown, 9 Vet. App. 109 (1996); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992).

Based on the above, Dr. R.S.'s opinion is not entitled to any weight.  The remaining discounting factors show that each VA opinion also is not entitled to any weight, while C.P.'s opinion is entitled to some weight.  That the Veteran must have had hearing loss in service for his current bilateral hearing loss to be related to his loud noise exposure therein was the rationale for each VA opinion.  However, set forth above was that establishing service connection does not require an in-service diagnosis.  The absence of hearing loss in service indeed is not necessary.  Ledford v. Derwinski, 3 Vet. App. 87 (1992).  A medically sound basis for attributing current hearing loss arising to the level of a disability to in-service loud noise exposure is sufficient.  Hensley, 5 Vet. App. at 157.  The June 2005 VA examiner and the VA ENT nurse additionally may have relied on an inaccurate factual premise.  Both noted that the Veteran's hearing was normal at his separation examination, but the February 2012 VA examiner questioned this.  C.P. impliedly did too.  The entire rationale for C.P.'s opinion was the Veteran's contention that this examination included only a whisper hearing test instead of test of his pure tone thresholds.  In other words, he recalls that his hearing was not well-tested upon his separation from service.  He is competent in this regard for the same reason as above.  He also is credible.  No reason for significant doubt exists.  The box on the separation examination for a whisper hearing test is blank, while the box for the pure tone threshold test is completed with respect to 500, 1000, 2000, and 4000 Hertz.  Yet the threshold was recorded as 5 decibels in each ear at each of these frequencies.  It seems extremely unlikely that there would have been no variation whatsoever.  

The three negative VA opinions, in sum, are not persuasive.  C.P.'s positive is somewhat persuasive.  Accordingly, it is the persuasive medical evidence available.  The opinion encompasses incurrence of regarding the Veteran's current left ear hearing loss as well as incurrence or aggravation regarding his current right ear hearing loss.  Bolstering C.P.'s opinion is persuasive lay evidence from the Veteran.  He is not competent to indicate the nexus of his current bilateral hearing loss.  Yet, he is competent, once again for the same reasons as above, in recounting particularly in an April 2009 VA treatment record that he has had hearing loss ever since first experiencing such during service.  He also is credible.  As above, no reason for significant doubt exists.  Service treatment records do not confirm any hearing loss during service, but the pure tone thresholds from both the Veteran's entrance examination and his separation examination are disputable.  No treatment records, whether VA or private, exist until the period on appeal.  Other than a January 1968 VA examination finding no loss of hearing for ordinary conversational speech, that are no VA examinations prior to the June 2005 VA examination.  However, it is continuity of symptoms and not continuity of treatment that is required.  Savage, 10 Vet. App. at 488.  The large evidentiary gap thus is of no import.  That tinnitus often is a symptom of hearing loss finally is notable.  Merck Manual, Section 7, Chapters 82 and 85.  While a link between the Veteran's current bilateral hearing loss and his current tinnitus has not been confirmed, it is possible one exists.

All requirements for establishing service connection for left ear hearing loss and for right ear hearing loss, collectively bilateral hearing loss, have been met.  Specifically, general service connection for bilateral hearing loss has been established by a preponderance of the evidence.  The benefit sought thus is granted without application of the benefit of the doubt.  This determination, given that it is favorable to the Veteran, renders it unnecessary to consider any of the other manners in which service connection can be established.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs