Citation Nr: 1335085 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-04 463 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from December 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 2011. That rating decision also denied service connection for residuals of shell fragment wound to the left leg, which was resolved in the Veteran's favor by the grant of service connection for shell fragment wound of the left popliteal fossa, Muscle Group XI, and for a residual scar, in a January 2013 Decision Review Officer (DRO) decision. To date, no notice of disagreement with the effective date or noncompensable ratings assigned in that decision has been received; accordingly, no issue regarding the shell fragment wound residuals is currently before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Bilateral hearing loss was at least as likely as not due to significant in-service noise exposure resulting from the Veteran's duties as a demolition specialist during World War II. CONCLUSION OF LAW Bilateral hearing loss was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) need not be discussed. Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there generally must be medical or, in certain circumstances, lay evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As applied to hearing loss, the first element must be met by audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The second element, in-service injury, is satisfied by credible evidence of acoustic trauma due to significant noise exposure in service. Id. In this case, the first element is clearly demonstrated by a VA audiometric examination March 2011, which disclosed pure tone thresholds at the frequencies of 500, 1000, 2000, 3000, and 4000 hertz of 50, 55, 65, 60, and 60 decibels, respectively, in the left ear. Corresponding findings in the right ear were 45, 50, 45, 55, and 65 decibels. Speech recognition score in the left ear was 52 percent, and 72 percent in the right ear. Both the pure tone thresholds and the speech recognition scores meet the criteria for a VA hearing loss disability, under 38 C.F.R. § 3.385. The second element is also satisfied, by the Veteran's credible statements of in-service noise exposure, which are consistent with his documented occupational specialty. The Veteran's official military Honorable Discharge document reflects that he served in Central Europe and the Philippines during World War II in a combat engineering battalion. He was a Demolition Specialist for 15 months. Duties in this occupational specialty involved the preparation and detonation of charges of dynamite and TNT in road construction, detonation of bridges, destruction of ammunition and land mines, and destruction of road blocks. Such duties included determination of the size and type of explosive to be used, preparation of charge, placement of explosive in drilled holes or secured to object, and detonation by machine or by lighting fuse. He states that hearing protection was not used, and the Board finds his statements to be credible. Thus, the only remaining element is whether there is a nexus between current disability and in-service injury. Specifically as to hearing loss, this requires a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. at 159. VA treatment records reflect that the Veteran was seen as a new patient in August 2010 to establish care, primarily to obtain hearing aids. He was referred for an audiology consult, which took place in October 2010. At that time, he complained of gradually decreasing hearing in both ears with associated communication problems. The Veteran's wife reported that "they" had been very frustrated with communication for "many years," but that the Veteran had been "too stubborn" to pay for hearing aids. He reported military exposure to dynamite without hearing protection. He denied occupational and recreational noise exposure, ear surgery, tympanic membrane perforation, otalgia, otorrhea, head trauma, known ototoxin exposure, meningitis, and family history of hearing loss at an early age. A comprehensive audiometric assessment disclosed moderate (at 250 hertz) to moderately-severe (at 500 to 4000 hertz) to severe (at 6000 to 8000 hertz) sensorineural hearing loss in the right ear. In the left ear, moderately-severe (at 250 to 1000 hertz) to severe (at 2000 to 8000 hertz) sensorineural hearing loss was revealed. On the VA examination in March 2011, the Veteran reported bilateral hearing loss for about 20 years, and "possibly longer." He reported exposure to heavy equipment and explosions during service without ear protection. He denied occupational or recreational noise exposure. The diagnosis was moderate to moderately severe sensorineural bilateral hearing loss. The examiner commented that she could not state whether bilateral hearing loss was at least as likely as not due to noise exposure in service as a demolition specialist without resort to mere speculation. She explained that the status of the Veteran's hearing during service was unknown. The current hearing loss exceeded the norms for hearing loss due to aging, but the configuration was not typical of noise induced hearing loss, because it was essentially flat. The examiner said that, however, hearing loss due to noise exposure may begin in the high frequencies and gradually spread to the lower frequencies. The Veteran reported significant military noise exposure, but reported the onset of hearing loss as about 20 years ago, approximately 45 years after separation. Without valid service audiograms, she could not determine without speculation whether the current hearing loss began as a result of military noise exposure. A conclusion that a diagnosis or etiology opinion is not possible "without resort to speculation" is a medical conclusion just as much as a firm diagnosis or a conclusive opinion; therefore, the conclusion must be supported by evidence. Jones v. Shinseki, 23 Vet. App. 382 (2010). Although an examiner's conclusion, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection, the remainder of the report must be considered as evidence of whether the disability was incurred in service. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Here, the examiner was unable to reach a conclusion concerning a nexus because there was no audiogram in service, and the reported the onset of hearing loss as about 20 years prior to the examination, or approximately 45 years after separation. However, as the examiner herself noted, the separation examination in April 1946 showed only a whispered voice test, which she commented were insensitive to high frequency hearing loss and not suitable for rating purposes. More importantly, the Board already has found that the Veteran sustained the requisite in-service injury, i.e., significant noise exposure as a detonation specialist. Under Hensley, hearing loss need not be shown at separation for the Veteran to prevail, where significant noise exposure is shown. As to the Veteran's history, as reported, this was vague; although he reportedly began noticing hearing loss about 20 years earlier, it had been "possibly earlier." On his VA outpatient consult in October 2010, his wife displayed some exasperation; her comments suggest that the Veteran's hearing loss was likely noticed by his wife and family/friends before he noticed it himself. Moreover, the VA examiner also stated that hearing loss due to noise exposure may begin in the high frequencies and gradually spread to the lower frequencies. In examining the remainder of the report, it is noteworthy that the examiner specifically stated that the Veteran's hearing loss "exceeded the norms for hearing loss due to aging." No other post-service potential causes or risk factors have been identified. Significantly, at the time of his October 2010 audiology consult, the Veteran denied occupational and recreational noise exposure, ear surgery, tympanic membrane perforation, otalgia, otorrhea, head trauma, known ototoxin exposure, meningitis, and family history of hearing loss at an early age. Thus, no intercurrent cause of hearing loss has been identified; even the normal aging process has been found to be doubtful as a cause. The Board finds that the examiner's comments are sufficient to provide a medically sound basis for the Veteran's hearing loss to have been caused by in-service noise exposure. In this regard, the Board accepts the Veteran's statements regarding in-service noise exposure as credible, although his memory concerning post-service noticeable hearing loss is likely understated. While an examination with a greater degree of certainty would have been useful, taken as a whole, the evidence currently of record is evenly balanced. Thus, it is not necessary to further delay a decision on this 88-year old World War II Veteran's claim by requesting an additional examination, as, with the resolution of all reasonable doubt in the Veteran's favor, service connection for left ear hearing loss may be granted. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs