Citation Nr: 1336042	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  11-02 227	)	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


WITNESSES AT HEARING ON APPEAL

Appellant and Daughter


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran had over 20 years active duty service ending in May 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was filed in January 2010, a statement of the case was issued in December 2010, and a substantive appeal was received in January 2011.  The Veteran was afforded a live video conference hearing before the undersigned in April 2013, and the transcript is included in the record.

A March 2011 opinion by a private audiologist raises an implied claim of service connection for tinnitus.  This matter has not yet been adjudicated by the RO and the Board therefore does not have jurisdiction over it.  This matter is hereby referred to the RO for appropriate action.  


FINDING OF FACT

The Veteran's hearing loss disability is causally related to his active duty service. 


CONCLUSION OF LAW

Bilateral hearing loss disability was incurred during active duty service.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations 

The issue before the Board involves a claim of entitlement to service connection.  Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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 manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  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).

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, 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.  38 C.F.R. § 3.385.

The Board notes, at the outset, that the lack of any evidence that the veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992).  Instead, as noted by the United States Court of Veterans Appeals (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.

Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a brief of the VA Secretary).
  
Analysis

At the outset, the Board finds that the evidence shows that the Veteran does have a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385.  Specifically, on VA examination in March 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
50
55
55
LEFT
15
25
45
45
35

The remaining question is whether this bilateral hearing loss was either first manifested during service, or is otherwise causally related to service.  As noted above, the fact that the inservice hearing test results do not show that the requirements of 38 C.F.R. § 3.385 does not necessarily mandate a denial.  If inservice hearing tests show an upward shift in thresholds to suggest a decrease in hearing acuity (even if the criteria of 38 C.F.R. § 3.385 are not met), then consideration must be given to acoustic trauma as a possible cause of the later hearing loss.  

The Veteran's service records confirm he held a military occupational specialty (MOS) of engine mechanic or technician.  Exposure to acoustic trauma is therefore conceded.  

Hearing tests conducted during the early part of the Veteran's service do not suggest any problems with hearing acuity.  However, beginning the in the mid-1970's there does appear to be some upward shift in certain thresholds.  On examination in September 1973, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
10
10
15
LEFT
10
10
5
5
10

On examination in August 1975, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
10
15
LEFT
20
15
5
10
30

On examination as part of a hearing conservation program in June 1979, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
10
15
LEFT
15
15
10
15
40

On examination as part of a hearing conservation program in October 1979, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
5
10
LEFT
10
15
5
10
30

On separation examination in February 1980, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
5
10
LEFT
10
15
5
10
30

Thereafter, the Veteran continued to be placed in a hearing conservation program, which led to the a series of tests which showed a gradual upward shift in certain frequencies.  Most recently, the Veteran has sought private and VA treatment of his hearing conditions.  

On VA examination in March 2009, the Veteran claimed daily exposure to noise from ship engines, and that no hearing protection was used.  He also endorsed civilian exposure to small engines, but stated that proper hearing protection was used at all times.  He denied any recreational noise exposure.  Based on her examination results and a review of the record, the examiner at the time concluded that the Veteran's current hearing loss was not caused by or related to his active service.  Though her original examination mistakenly stated the Veteran's June 1979 audiometric testing results for the left ear did not qualify as hearing loss under 38 C.F.R. § 3.385, this was corrected in a later addendum opinion.  Nonetheless, the examiner maintained that the Veteran's later separation examination which showed only mild hearing loss (30 dB) in the left ear indicated there was a temporary threshold shift which resolved.  Therefore, the examiner opined that hearing loss was not related to service.

Upon private examination in March 2011, Dr. Catherin Cowan-Oberbeck, AuD, FAAA, CCC-A, opined, after reviewing the Veteran's service history and examination results, that his "current hearing loss and tinnitus are as likely as not a result of exposure to a high noise environment while on active duty in the United States Navy."
  
The Board notes that additional service records submitted by the Veteran confirm not only his MOS as engine mechanic, but that he was exposed daily to loud noises on multiple ships over his 20 years of service.  Furthermore, service treatment records indicate he was diagnosed with traumatic abrasion to the internal auditory canal in July 1967.

During his April 2013 hearing, the Veteran and his daughter stated he worked as a security guard following military service, and then found work assembling engines.  The Veteran clarified that such work did not expose him to operational jet engines, but rather involved putting component parts together.  He said that, to the extent there was any noise exposure, he was required to wear hearing protection as designated by the Occupational Safety and Health Administration (OSHA).  The Veteran's daughter further testified that the Veteran led a quiet life and experienced no recreational noise exposure.

The evidence in this case certainly does not compel a finding of a nexus to service.  There is a gap of a number of years after service before the criteria of 38 C.F.R. § 3.385 were met.  However, there is some suggestion of a decrease in hearing acuity during service, although not enough to warrant a finding of hearing loss disability as defined by that regulation.  Nevertheless, the Veteran's conceded exposure to acoustic trauma in connection with his duties during service argues in his favor, as does the testimony offered at the Board hearing (which testimony the Board finds to be credible).  Although there is a negative VA opinion, there is also a positive private opinion (which does admittedly lack a detailed rationale).  After reviewing the totality of the evidence, the Board believes that the positive evidence is in a state of equipoise with the negative evidence.  Under such circumstances, the law provides that the case be decided in the Veteran's favor.  38 U.S.C.A. § 5107(b).  Accordingly, service connection for bilateral hearing loss is warranted.  

In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By letter dated in December 2008, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date.  He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection.


ORDER

Service connection for bilateral hearing loss is warranted.  The appeal is granted.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs