Citation Nr: 1333370 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-16 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to February 1958. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for bilateral hearing loss. The Veteran testified before the undersigned at a September 2009 videoconference hearing at the RO. A transcript of that hearing has been associated with the record. In October 2009, July 2011, and March 2013, the Board remanded this matter for further development. In September 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2013). 38 U.S.C.A. § 7107 (a)(2) (West 2002). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's current bilateral hearing loss is the result of in-service noise exposure. CONCLUSION OF LAW Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran 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). As the Board is granting the claim of service connection for bilateral hearing loss, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (e.g. sensorineural hearing loss), is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2013). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2013). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is considered to be a disability for VA purposes 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 three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, a December 2009 VA examination report reveals that the Veteran has been diagnosed as having bilateral sensorineural hearing loss as defined by VA. See Id. Thus, current hearing loss has been demonstrated. The Veteran has reported that he was exposed to loud noises in service while operating a "wrecker and retriever" vehicle to move military aircraft and disabled vehicles in close proximity to the flight line. While performing such duties, the engines of the aircraft were generally still running and the Veteran was not issued any hearing protection. He also reportedly worked as an auto mechanic following service with only occasional hearing protection, but he did not experience any recreational noise exposure following service. The Veteran's certificate of discharge from service, DD 214, reflects that his military occupational specialty (MOS) was an auto repairman and that he served with the "823 Transportation Squadron" of the "823 Air Base Group." Also, a service member who had served in a transportation unit with the Veteran submitted a letter in June 2006 in which he confirmed that the Veteran operated "coleman tugs," wreckers, and other military equipment on the flight line in the immediate vicinity of B-47 jets without the use of hearing protection. During that time, the jet engines were continually running at high revolutions in order to determine their performance. The Veteran's service treatment records are unavailable and are presumed to have been destroyed in a fire at the National Personnel Records Center in 1973. The Veteran is competent to report in-service noise exposure. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Further, there is nothing to explicitly contradict his reports and they are not inconsistent with the evidence of record and the circumstances of his service. Therefore, his reports of in-service noise exposure are credible and in-service acoustic trauma is conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). With respect to the etiology of the Veteran's current hearing loss, the weight of the evidence indicates that it is likely related to noise exposure in service. A July 2005 VA audiology consultation note includes an opinion that it was "plausible" that the Veteran's hearing loss was, at least in part, caused by noise exposure in service. This opinion was based on his report of noise exposure in service and the fact that his hearing loss had many characteristics of a noise-induced hearing loss. A September 2009 statement from a physician at Gainesville ENT and Allergy Associates indicates that the Veteran had been examined and that his medical records had been reviewed. The physician opined that the Veteran's mild to severe symmetric sensorineural hearing loss was likely ("as most likely"/"51 percent probability or better") caused by or a result of noise exposure in service. The physician reasoned that the Veteran had experienced noise exposure without the use of hearing protection for an extended period of time. According to his reports, such noise exposure would have exceeded current Occupational Safety and Health Administration (OSHA) standards. The audiologist who conducted the December 2009 VA examination opined that she could not resolve the issue of whether the Veteran's current hearing loss was etiologically related to service without resort to mere speculation. She explained that the Veteran's service treatment records were not available. Therefore, the status of his hearing during service was unknown. The configuration of his audiologic findings was consistent with noise exposure and he reported significant noise exposure during service. However, he worked in auto repair after service. Therefore, without records it could not be determined whether his hearing loss was the result of military noise exposure, post-service noise exposure, or some other factor. In October 2011, the examiner who had conducted the December 2009 VA examination re-reviewed the Veteran's claims file (including his statements concerning the history of his hearing loss) and again concluded that she was unable to determine whether his hearing loss was the result of military noise exposure without resort to speculation. She explained that the Veteran had provided conflicting statements regarding the onset of his hearing loss in that he indicated during the September 2009 Board hearing that it had its onset during service, but subsequently reported during the December 2009 VA examination that hearing loss had its onset 25 years prior to the examination (which would have been approximately 26 years after his separation from service). Nevertheless, it was often difficult for a person with hearing loss to determine its exact onset. He had reported exposure to heavy equipment on the flight line without the use of hearing protection, as well as post-service noise exposure while working as an auto mechanic with only intermittent use of hearing protection. The examiner further explained that the Veteran's statement during the September 2009 Board hearing (i.e. that hearing loss had its onset in service) did not provide objective evidence that hearing loss existed from service. There were no available service audiograms to determine if hearing loss existed during service. Also, a 2006 report on noise exposure in the military from the Institute of Medicine indicated that "[i]f documentation of the existence of [hearing loss] . . . at discharge from military is missing, it is nearly impossible to determine whether [hearing loss] later in life is the result of noise exposure during prior military service or whether the individual's [hearing loss] was acquired during military service." Since there was no objective evidence linking the Veteran's current hearing loss to service and he reported post-service occupational noise exposure in addition to military noise exposure, the examiner's December 2009 opinion remained unchanged. The December 2009 and October 2011 opinions are adequate to the extent that they are accompanied by specific rationales addressing why a definitive conclusion as to whether the Veteran's hearing loss was related to service could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the VA audiologist stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The September 2009 opinion, however, was based upon an examination of the Veteran and an apparent review of his medical records and reported history and it is accompanied by a specific rationale that is not inconsistent with the evidence of record. Thus, this opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the July 2005 opinion is of limited probative value because it is equivocal, it at least supports the conclusion that the Veteran's current hearing loss is related to service. In sum, the September 2009 opinion reflects that it is likely that the Veteran's current hearing loss is related to noise exposure in service. In light of this opinion and resolving reasonable doubt in his favor, the Board finds that the criteria for service connection for the currently diagnosed hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs