Citation Nr: 1336700 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-33 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from November 1992 to December 1999. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that reopened a previously denied claim for service connection for bilateral hearing loss and denied the claim on the merits. In September 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. In January 2012, the Board found that new and material evidence had been received and reopened the claim for service connection for bilateral hearing loss. The case was remanded for further evidentiary development. The requested development has been completed. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The medical evidence is in equipoise on the question of whether the Veteran's currently demonstrated bilateral hearing loss disability is causally related to or aggravated by his military noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as sensorineural hearing loss (as an organic disease of the nervous system), if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, 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 scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay 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 (Fed. Cir. 2007). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt should be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran, in written statements and in testimony before the Board, asserts that his current bilateral hearing loss is related to his active duty service. Specifically, he contends that his current hearing loss is the result of his duties as a plank captain in service, which required him to start plane engines, inspect planes, and work in close proximity to planes for significant amounts of time. Service medical records show that the Veteran did not complain of hearing loss but was noted to have an abnormal examination of the ears upon enlistment in March 1992. Following earwax removal, the Veteran's hearing was retested and he was found qualified for entrance into active duty. An audiogram in November 1992 showed puretone thresholds of 15, 15, 25, 25, 20, and 35 decibels in the right ear at 500, 1000, 2000, 3000, 4000, and 6000 Hertz and 20, 25, 15, 15, 10, and 5 decibels in the left ear at the same frequencies. Thereafter, medical records show that he was routinely exposed to noise in service from jets and construction equipment. He was placed in a hearing conservation program and was provided personal hearing protection devices, including ear plugs. In May 1993, it was noted that he had a history of earaches and congestion. Audiometric testing in April 1993 revealed puretone thresholds of 20, 25, 30, 25, 20 and 30 decibels in the right ear at 500, 1000, 2000, 3000, 4000, and 6000 Hertz and 15, 25, 25, 30, 15 and 30 decibels in the left ear at the same frequencies. In November 1994, he reported ringing in his ears and a loss or change in hearing. Audiometric testing in service did not reveal hearing impairment for VA purposes. In November 1997, he was notified of a significant threshold shift. An audiogram at that time showed puretone thresholds of 10, 25, 10, 00, -10, and 30 decibels in the right ear at 500, 1000, 2000, 3000, 4000, and 6000 Hertz and 15, 25, 05, 10, -05, and 25 decibels in the left ear at the same frequencies. During his September 1999 separation examination and on a September 1999 report of medical assessment, he complained of hearing loss. Audiometric testing in September 1999 revealed puretone thresholds of 15, 25, 25, 15, 10, and 30 decibels in the right ear at 500, 1000, 2000, 3000, 4000, and 6000 Hertz and 20, 30, 25, 25, 15, and 30 decibels in the left ear at the same frequencies. However, it was noted that there was no significant threshold shift on audiogram as compared to baseline. At a May 2001 VA examination, the Veteran complained of hearing difficulty and infrequent tinnitus. He reported a history of noise exposure in service while working on the flight line and while working in corrosion removal, during which time he was exposed to noise from sanders, grinders, and fans. The Veteran reported the use of hearing protection while in service. As a civilian, the Veteran reported occasional noise exposure from the use of power tools, also with the use of hearing protection. Audiological examination did not reveal hearing impairment for VA purposes. Therefore, no opinion regarding the etiology of any hearing loss was offered. The examiner noted that the Veteran's reports of tinnitus were consistent with those noted in the general population, however contribution from noise exposure could not be ruled out. A July 2001 rating decision granted service connection for tinnitus and assigned a 10 percent rating, effective December 17, 1999. In June 2004 and June 2007, the Veteran underwent private audiological evaluations, which revealed some degree of hearing loss bilaterally. However, no opinion regarding the etiology of the Veteran's hearing loss was offered. In November 2008, the Veteran underwent additional VA examination, during which he reported a gradual onset of hearing loss and tinnitus that occurred during service and had worsened in the past few years. He reported in-service noise exposure from his duties on the flight line and in corrosion control. He also reported that after service, he worked for 12 years in construction with the use of hearing protection. He reported the use of power tools with hearing protection. Audiometric testing revealed a mixed type (sensorineural and conductive) hearing loss bilaterally, which was greater in the middle frequencies. The examiner diagnosed tinnitus and bilateral moderate mixed hearing loss. The examiner found that it was at least as likely as not that the Veteran's tinnitus was related to military service, as his reported date of onset correlated with exposure to loud noise from military equipment. However, the examiner found that it was less likely as not that the Veteran's hearing loss was related to military service because the Veteran's hearing loss was a mid-frequency mixed type, and noise-induced hearing loss tended to be high frequency sensorineural hearing loss. VA medical records dated in March 2009 and August 2009 show audiological treatment during which the Veteran described a gradual and progressive hearing loss bilaterally since service. He reported military noise exposure while working on the flight line and in corrosion control with the use of hearing protection, occupational noise exposure while working construction with some use of hearing protection, and recreational noise exposure from power tools, wood working tools, and motorcycles, with some use of custom hearing protection. Those records show that the Veteran was prescribed hearing aids. Upon VA examination in February 2012, the examiner stated that the claims file was reviewed. After clinical evaluation, including an audiogram, the Veteran was diagnosed with mild to moderate, combined sensorineural hearing loss on the right and left. It was noted that he reported "intermittent tinnitus that is more likely than not caused by the same etiology as this hearing loss." It was stated that the current audiogram showed significantly worse hearing in extent and severity than the military test results and the May 2001 VA examination. The Veteran denied episodes of otitis media or ear congestion, and "no significant conductive component was found." The audiologist concluded that considering the evidence of record, the Veteran's hearing loss and tinnitus were "not caused by his military service." Upon entrance to service, the Veteran's hearing was initially impaired. Following earwax removal and re-testing, he was accepted for service. At the time, he did not have hearing loss by VA standards, although there were some decibel readings in excess of 20, which has been found to be a demonstration of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Throughout his service years, his exposure to noise was well-documented and he underwent numerous audiograms that essentially showed changes to his hearing acuity that were at times better and at times worse. He continued to complain of "decreased hearing" including upon separation examination. He is competent to make such assertions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss by VA standards has clearly been demonstrated currently. The nexus opinions in the file do not support his claim that his currently manifest hearing loss disability was due to noise exposure in service, in part because his hearing loss has been found to be mixed (conductive and sensorineural in nature). Notably, however, the Veteran's tinnitus is service-connected and has been found to be due to noise exposure. Additionally, upon VA examination in February 2012, the examiner stated that there was no conductive component to the Veteran's hearing loss at the present examination. Furthermore, despite concluding that the Veteran's hearing loss and tinnitus were not caused by his military service, the clinician noted that tinnitus was "more likely than not caused by the same etiology as the hearing loss." The specific medical opinions are contrary to the Veteran's assertions. However, his service medical records clearly document noise exposure with efforts to conserve hearing ability, with some demonstration of preexistence. The Veteran had persistent reports of hearing difficulty, including upon separation examination as well as within approximately 14 months of separation from service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His tinnitus has been attributed to noise exposure, and the most recent VA opinion noted that the two had the same etiology. Resolving reasonable doubt in favor of the Veteran, the Board concludes the Veteran's current hearing loss disability was incurred or aggravated during his active service, and service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs