Citation Nr: 1336718	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  10-02 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

L. Edwards, Counsel


INTRODUCTION

The Veteran had active service from February 1967 to December 1968.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

In January 2012 and August 2012, the Board remanded this claim for additional development.  The Board notes that this issue was originally characterized as entitlement to service connection for bilateral hearing loss; however, the RO granted entitlement to service connection for left ear hearing loss in a November 2012 rating decision, and as such, that issue is no longer on appeal.  The remaining issue on appeal is more accurately stated as listed on the title page of this decision.

In August 2013, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA).  See 38 C.F.R. § 20.901 (2013).  AVHA opinion was received in October 2013.


FINDING OF FACT

The Veteran's right ear hearing loss is causally or etiologically due to noise exposure during service.


CONCLUSION OF LAW

Service connection for right ear hearing loss is established.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).







REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  In this case, the Board is granting in full the benefit sought on appeal.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

II.  Entitlement to Service Connection for Right Ear Hearing Loss

The Veteran seeks entitlement to service connection for right ear hearing loss.  He asserts his right ear hearing loss is a result of acoustic trauma during service.  Specifically, he has asserted that he experienced exposure to rocket and mortar attacks, including a direct mortar strike to his bunker during his military service in Vietnam.  See February and September 2009 statements.  The Veteran's account of in-service noise exposure is credible and consistent with the circumstances of his service.  Thus, the Veteran's exposure to acoustic trauma during service is established.  See 38 U.S.C.A. § 1154(a).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under C.F.R. § 3.385, medical evidence of current hearing loss requires a showing that the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 

For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

Decibel losses recorded on service department audiological examinations prior to November 1, 1967, are assumed to be measured in American Standards Association (ASA) units, and are converted to International Organization for Standardization (ISO) units to facilitate comparison of results.  The current VA definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. 

In the Hensley case the Court noted that 38 C.F.R. § 3.385, "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service."  5 Vet. App. at 159.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran's service records were reviewed.  His entrance examination from November 1965 did not indicate any hearing abnormalities.  The pure tone thresholds, in decibels, were as follows, with converted standards in parentheses:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5 (10)
-5 (5)
-5 (5)
-5 (5)
-5 (0)

Treatment records are silent for any complaints or treatment of hearing damage during service.  A February 1967 audiological evaluation revealed 15/15 hearing acuity, bilaterally, on whispered voice testing and spoken voice testing.  At that time, no audiological threshold readings were conducted.  The Veteran's discharge examination from December 1968 also did not note any hearing abnormalities.  However, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
15
--
15

Post service, in January 2006 a private audiogram conducted appears to indicate pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
50
--
60

The Veteran's mother submitted a letter in January 2009, stating that after the Veteran came home from Vietnam it seemed he could not hear as well as he could before he left.  She reported that family members often had to repeat what they said to the Veteran, and the Veteran complained that his family members did not speak loudly enough.

The Veteran was afforded a VA examination in May 2009.  On the audiological evaluation in May 2009, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
60
70
75
75

The results from the May 2009 VA examination demonstrates current right ear hearing loss as it is defined by VA regulation, and therefore, the current disability requirement for service connection is satisfied.  However, the question remains whether a medical nexus exists between the current right ear hearing loss and the Veteran's claimed in-service noise exposure.

The Board finds the May 2009 VA examiner's opinion to be inadequate as it did not discuss the documented threshold shifts that occurred during service.  

The Veteran was afforded an additional VA examination in February 2012, which again demonstrated right ear hearing loss as defined by VA regulation; however, the February 2012 VA examiner also failed to address the documented in-service threshold shift.  An addendum opinion was obtained in September 2012, however, again, the examiner failed to discuss the threshold shift.

A specialist's opinion from the VHA was obtained in October 2013.  The Veteran's file was reviewed.  The specialist indicated that the September 2012 addendum stated there was a significant threshold shift in the left ear, but failed to mention that the right ear also had a 15-decibel threshold shift at 4000 Hz.  The examiner stated that although the threshold at 4000 Hz in the right ear was considered normal, the fact that there was a 15-decibel shift from enlistment to separation indicates evidence of noise injury.  The specialist also explained that young adults with noise-induced high frequency hearing loss will likely exhibit greater hearing loss as they age than young adults with normal hearing.  Therefore, the specialist opined that it is reasonable to conclude that the Veteran's right ear hearing loss is at least as likely as not related to his history of military noise exposure.  

While several VA examiners did not relate the Veteran's current right ear hearing loss to service, these examiners failed to account for the documented threshold shift in the right ear during service.  The October 2013 specialist has opined that the Veteran's right ear threshold shift in hearing during service indicates noise injury and that his current right ear hearing loss is a result of noise exposure during service.  Accordingly, service connection for right ear hearing loss is warranted.


ORDER

Entitlement to service connection for right ear hearing loss is granted.



____________________________________________
TANYA A. SMITH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs