Citation Nr: 1335495	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  12-07 000	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Mary-Caitlin Ray, Associate Counsel 








INTRODUCTION

The Veteran served on active duty from February 1969 to February 1971.  He received the Combat Infantry Badge.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan.  


FINDING OF FACT

The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to active duty service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1111, 1112, 1154(b), 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.  

II.  Service Connection 

The Veteran alleges that his current hearing loss disorder was incurred during service as the result of exposure to acoustic trauma.  He states that he has been experiencing hearing loss since his active service.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case.


Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  

For VA purposes, hearing impairment is considered 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 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.  

The Court held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service."  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

The Board finds that a hearing loss disability for VA compensation purposes has been shown.  A July 2011 VA audiological examination report revealed the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT (Decibels)
65
45
35
40
85
LEFT
(Decibels)
25
15
30
45
70

The same examination report showed speech recognition scores using the Maryland CNC test of 80 percent and 96 percent in the right and left ears, respectively.  Based on these results, which met the requirements set forth in 38 §C.F.R. § 3.385, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  Shedden/Caluza element (1) is therefore met.

As for the question of in-service incurrence, service treatment records are negative for complaints, treatment, or diagnosis of hearing loss.  The Veteran's service discharge examination showed normal hearing.  However, as noted, the Veteran alleges that his hearing loss is the result of in-service exposure to combat-related noise.  His DD Form 214 shows that he served in Vietnam, and that he is a recipient of the Combat Infantry Badge.  Combat service allows for a statutory presumption of exposure to high levels of noise.  38 U.S.C.A. § 1154(b) (West 2002).  The allegation of in-service exposure to noise is thereby accepted.  Accordingly, Shedden/Caluza element (2) is satisfied as to this claim.

A finding of a nexus between the Veteran's current bilateral hearing loss and in-service noise exposure is still needed to satisfy Shedden/Caluza element (3).  In a July 2011 VA examination report, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but she opined that it was not at least as likely as not that hearing loss was caused by or the result of an event in the Veteran's military service.  The examiner based this opinion on the rationale that the Veteran had normal hearing at entrance and separation.  Reference was made to the Institute of Medicine's Landmark Study on Military Noise Exposure found "there is no scientific basis for delayed onset noise induced hearing loss, [i.e.] hearing normal at discharge and causally attributable to military noise exposure 20-30 years later."  

In this regard, the VA audiological examiner based the entire opinion on the absence of any hearing loss during the Veteran's service, and she has identified no other etiology for the Veteran's hearing loss.  However, the Board reiterates that even if audiometric testing at separation from service does not meet the regulatory requirements for establishing hearing impairment under 38 C.F.R. §3.385, service connection may still be established for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. 155, 158-59 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The examiner did not take this into consideration when rendering her opinion.  She also failed to consider the Veteran's lay history of experiencing hearing loss since service.  

In December 2011, the Veteran underwent a private medical examination.  The examiner noted that the Veteran served in Vietnam and was exposed to combat noise on a consistent basis without auditory protection.  He also noted that the Veteran gave a history of hearing loss since service that had gradually worsened over time.  The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined that it would be "unusual not to have [the hearing loss] significantly initiated during his time in the military."  This opinion is based on an accurate factual premise, and offers clear conclusions with supporting data and a reasoned medical opinion connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 142 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

The Veteran has consistently contended that he was exposed to loud combat-related noise in service, and that he has experienced hearing loss since that time.    Indeed, contrary to the findings made by the RO, he has not alleged that the onset of his hearing loss occurred many years post-service.  He only stated that the hearing loss did not become problematic until the early 2000s.  He competent to make that assertion and the Board also finds him to be credible.  The statement from his wife makes a similar argument.  

The evidence in this case is at least in equipoise with regard to the cause of the Veteran's current hearing loss being his active duty service.  The opinions are in relative equipoise.  Accordingly, the Board concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports the Veteran's claim for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).  Therefore, the claim is granted.  


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
MICHAEL HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs