Citation Nr: 1333773 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-39 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1968 to July 1971 and from January 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2011. A transcript is of record. FINDINGS OF FACT 1. The competent and probative evidence establishes that left ear hearing loss was manifest during active service. 2. The evidence of record is at least in equipoise as to whether the Veteran's right ear hearing loss had onset in service. CONCLUSION OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for hearing loss. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran contends that he has his current hearing loss is due in-service noise exposure from artillery fire, and the use of welding equipment, and a firing range he was in charge of at Fort Benning. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2013). The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2013). For the purposes of applying the law 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2013). In addition, under case law, VA recognizes that the normal threshold for hearing under the applicable range of frequencies is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, although not necessarily a hearing disability for VA purposes. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). The service treatment records (STRs) from the Veteran's first period of active service show that on a July 1968 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 n/a 15 LEFT 5 5 5 n/a 25 Therefore, the record showed that the Veteran had hearing loss, but not a disability, in his left ear when he entered his first period of service in 1968. See Hensley, 5 Vet. App. at 160. The STRs do not show any complaints, treatment or diagnoses related to hearing loss. There was no further audiological testing from the first period of active service. On a June 1976 audiogram, from between the periods of active service, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 n/a 15 15 LEFT 15 15 n/a 20 60 During the second period of active service, an April 1977 audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 n/a 25 LEFT 10 15 10 25 75 The Veteran was diagnosed with severe to profound high frequency sensorineural hearing loss in the left ear. On a September 1977 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 15 LEFT 25 15 15 25 75 The treatment notes stated that hearing protection had been issued. In December 1979, the Veteran was again diagnosed with severe to profound high frequency sensorineural hearing loss in the left ear. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 n/a 20 LEFT 20 20 20 n/a 80 There was no further audiological testing from the second period of active service. Treatment notes from the National Guard, subsequent to the second period of active service, include an October 1983 audiogram, at which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 n/a 25 LEFT 15 10 10 n/a 70 Additional audiological testing results from National Guard service from September 1987 to May 2005 are of record. On the September 1987 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 30 LEFT 15 10 20 40 75 On a September 1991 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 15 40 LEFT 5 5 5 45 80 On a November 1994 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 20 40 LEFT 0 10 15 50 85 On a May 1995 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 20 40 LEFT 10 15 20 50 85 On a June 2000 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 60 90 LEFT 0 10 10 25 55 On a March 2001 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 15 30 60 LEFT 10 15 20 50 85 On a September 2004 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 35 65 LEFT 10 15 40 70 85 On a May 2005 audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 n/a 25 LEFT 15 10 10 70 90 The Veteran had a VA examination in December 2008 at which he stated that he had difficulty hearing, especially out of his left ear. His wife had to repeat things for him to understand them. The Veteran denied exposure to loud noise prior to military service. During service he was exposed to noise from artillery and welding equipment, and hearing protection was used when possible. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 55 55 LEFT 20 25 70 90 95 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear. The Veteran was diagnosed with moderately severe sensorineural hearing loss starting at 3000 Hz. and severe to profound sensorineural hearing loss in the left ear. The examiner noted that there were no separate audiograms from the Veteran's active service and that without them it was not possible to know when the hearing loss began. It was only possible to state that it progressed beginning with the October 1983 audiogram. The Veteran had another VA examination in April 2010 at which he denied exposure to loud noise prior to service. He reported loud noise during service from gunfire, explosions, and engine noise with hearing protection. There was noise exposure since service from vehicles and machinery with hearing protection. In addition, there was also recreational noise exposure from gunfire after service with hearing protection. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 55 55 LEFT 10 25 70 85 100 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 90 percent in the left ear. The examiner diagnosed the Veteran with moderately severe right sensorineural hearing loss and severe to profound left sensorineural hearing loss. She could not resolve the issue of whether the hearing loss in the left ear was related to service because based on the record she could only conclude that the hearing loss began between 1968 and 1976. No further decrease in hearing was noted until 1991. In regards to the right ear hearing loss, the examiner felt it was less likely as not caused by or a result of active military service. The rationale was that right ear hearing loss was not documented until September 1987, and the first audiogram showing hearing loss under the VA standards was in June 1991. Given that the 1983 audiogram showed that right ear hearing loss was within normal limits, it was safe to assume that hearing loss began sometime between 1983 and 1987 and then continued to progress. The Board notes that the April 2010 VA examiner's opinion regarding the right ear is insufficient because she did not consider whether the acoustic trauma from service could have caused the right ear hearing loss that began between 1983 and 1987. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (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). Furthermore, the correct standard was not used for the left ear given that the record shows hearing loss prior to the second period of active service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.385. The Veteran testified at the April 2011 hearing that during his second period of active service he ran a firing range at Fort Benning. He also said that the hearing protection used during service were little earplugs that did not provide much protection. In September 2013 a VA audiologist reviewed the record and opined that the Veteran's left ear hearing loss was aggravated by military noise exposure from the second period of active duty. The audiologist noted that the June 1976 audiogram, which was before the second period of active service, showed moderately-severe high frequency hearing loss while the April 1977 audiogram, which was after the period of active service began, showed severe high frequency hearing loss. The December 1979 audiogram showed severe-profound high frequency hearing loss. The audiologist continued that this worsening suggested significant threshold shifts that may be due to noise exposure. She wrote that a significant threshold shift is a change at a frequency that is greater than the normal measurement variability of 10 dB, and the significant threshold shifts measured in December 1979 were confirmed at later examinations. The September 2013 VA audiologist's opinion was rendered after a review of the claims file and an examination of the Veteran, and a rationale in support of the opinions was provided. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl, 21 Vet. App. at 124. Therefore, it can be given probative value. Although left ear hearing loss was not noted when the Veteran entered his second period of active service, the medical evidence clearly and unmistakably shows that it existed prior to this period of service. Thus, since the evidence clearly and unmistakably shows that his left ear hearing loss existed prior to service and does not clearly and unmistakably show that it was not aggravated beyond its natural course by service, and he currently suffers from left ear hearing loss, the criteria for service connection have been met. In summary, left ear hearing loss was not noted at entry to the second period of service, was shown on audiological testing during service and was worsened by the Veteran's service, and there is a current diagnosis of left ear hearing loss. Consequently, service connection for left ear hearing loss is granted. See 38 U.S.C.A. § 1111 The September 2013 VA audiologist also felt that the right ear hearing loss was at least as likely as not due to noise exposure from active military service. The audiologist noted that the Veteran reported unprotected noise exposure during military service and that in-service audiogram testing from the second period of active service showed mild hearing loss at 6000 Hz. and 8000 Hz. She cited medical literature stating that the greatest loss due to noise induced hearing usually occurs at 4000 Hz with the earliest damage in the highest frequencies at 6000 Hz. and 8000 Hz. Since service connection may be granted for any disease first diagnosed after discharge when the evidence establishes a link to service, and since the competent and probative evidence of record favors the claim, the Board finds that service connection for right ear hearing loss is warranted. 38 C.F.R. § 3.303(d). (CONTINUED ON NEXT PAGE) ORDER Service connection for left ear hearing loss is granted. Service connected for right ear hearing loss is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs