Citation Nr: 1333074	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-09 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo


INTRODUCTION

The Veteran had active service from May 1968 to April 1972.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in November 2011 before the undersigned Veterans Law Judge at a Travel Board hearing the RO in Nashville, Tennessee; a transcript is of record.

This claim was previously before the Board in February 2012, at which time the Board remanded it for additional development.  

The issue of service connection for a low back disability was also remanded by the Board in February 2012.  In a February 2013 rating decision, service connection was granted for lumbar spine degenerative disc disease.  Therefore, this issue has been resolved and is not on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).  

In June 2013, the Board requested a medical expert opinion from an audiologist with the Veterans Health Administration (VHA).  The requested opinion was subsequently received in July 2013.  The Veteran was provided with a copy of this opinion in August 2013, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903; a response was received in September 2013.  

The Veteran has filed a claim of entitlement to a total disability rating based on individual unemployability (TDIU), but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 



FINDING OF FACT

Bilateral hearing loss was noted at the Veteran's entry into service, and was more likely than not aggravated during service beyond normal progression.


CONCLUSION OF LAW

The criteria for service-connected aggravation of bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The 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)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

Given the Board's fully favorable decision in this matter, the Board finds that no discussion of VCAA compliance is necessary. 

Analysis

Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111, 1137 (West 2002).  Only those conditions recorded in examination reports can be considered as "noted."  38 C.F.R. § 3.304(b).  

The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. 

A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a), (b) (2013).  Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).

VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition.  38 U.S.C.A. § 1153.  Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).  If VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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).  Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection.  The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ."  Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)).  Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service.

At the Veteran's January 1968 entrance examination, audiological testing showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
6000
RIGHT
5
5
-5
-5
-5
50
LEFT
-5
-5
5
45
45
45

He was diagnosed with high frequency hearing loss.  Audiometric testing was not performed at the Veteran's March 1972 discharge examination, although such was recommended to evaluate hearing loss.  

Post-service treatment records include a VA audiogram dated in July 1999 which shows bilateral hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385.  Subsequent audiograms also show such degree of bilateral hearing loss.  

The Veteran contends that his hearing became much worse in service.  He attributes that to operating machine shop equipment during service.  In particular, he reported that he worked in a small space that he shared with welders and sheet metal workers, who also made a considerable amount of noise.  He also indicated that he while he was in the Navy, he was exposed to noise from helicopters.  Specifically, he reported that one of his duties was fire control aboard the ship, and any time a helicopter would leave or return he would stand by with fire equipment in case there was an accident.

A medical opinion was obtained in February 2013 regarding the Veteran's hearing loss.  The examiner opined that it was less likely than not that the Veteran's hearing loss incurred from or was caused by the Veteran's work with lathes during service.  The rationale was the lack of medical evidence indicating loss of hearing or an ear condition during service or within a year of service and that the Veteran had significant noise exposure after service.  The Board notes this opinion was provided by a podiatrist. 

The audiologist who rendered the July 2013 VHA opinion noted that the pre-enlistment hearing loss was well documented in both ears.  The Veteran was exposed to continuous noise while working as a machinist in service.  It was also noted that such servicemen did not normally wear hearing protection at that time.  In light of the absence of documentation, the audiologist stated that no assumptions could be made that the in-service decrease in hearing was a result of natural progression.  Therefore, the audiologist opined that there was more than a 50 percent likelihood that the preexisting loss in both ears was aggravated in service.  

The record shows that hearing loss was noted on the Veteran's entrance examination.  Therefore, the presumption of soundness does not attach.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  

The July 2013 VA audiologist opined that the Veteran's bilateral hearing loss, in fact, was aggravated in service.  Id.  The February 2013 VA examiner did not address aggravation.  

Upon review of the record, and after resolving all doubt in favor of the Veteran, the Board concludes that the Veteran's pre-existing bilateral hearing loss was aggravated by service.  Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss, based upon aggravation in service, is warranted.


ORDER

Service connection for bilateral hearing loss is granted. 



____________________________________________
K. A. BANFIELD 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs