Citation Nr: 1336821 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 12-06 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 J. Owusu-Asiedu, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to December 1966, and has unverified Army National Guard service. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision, mailed to the Veteran in September 2010, of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied the claim on appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The Veteran's bilateral hearing loss is attributable to his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2013). In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. Legal Principles and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system (sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As sensorineural hearing loss is an organic disease of the nervous system considered to be a chronic disease for VA purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Applying 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, and 4000 Hertz 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. The Veteran's service records show that his Military Occupational Specialty was Field Artillery and Operations Intelligence Assistant. During a private audiological evaluation in May 2011, the Veteran asserted that his in-service duties included serving as the coordinate plotter for 155, 175 and 8 inch howitzers, which required him to be ahead of the guns and call in the coordinates, and exposed him to heavy artillery noise. The Veteran stated that he performed target practice about three times a week with many shells of ammunition. The Veteran alleges that on one occasion of the howitzer being fired, his left ear drum perforated and he had blood in his ear canal. The Board notes that his service treatment records are absent of this incident. The Veteran also advised that when he qualified for the M-14 rifle, he was not provided any hearing protection. The Veteran has offered competent testimony as to his in-service experiences with noise exposure. A layperson is competent to report on that of which he or she has personal knowledge. See Layno, 6 Vet. App. at 465, 470. In addition, the Board finds the Veteran to be credible in his report of experiencing acoustic trauma, as it is consistent with his service. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012). The Board thus concedes that the Veteran had acoustic trauma in service. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Veteran's service records are dated prior to October 31, 1967, thus the ASA standards have been converted to ISO-ANSI standards, and are represented by the figures in parentheses. The Board notes that the Veteran's April 1966 induction examination is silent for results of audiometric testing. The Veteran's service treatment records show that at the time of his pre-induction examination in August 1965, his pure tone thresholds for the right ear were 10 (25), 10 (20), 10 (20), 10 (20), 10 (15), 10 (20), measured at 500, 1000, 2000, 3000, 4000 and 6000 Hertz, respectively. His pure tone thresholds for his left ear were 20 (35), 20 (30), 20 (30), 20 (30), 20 (25), 20 (30), measured at 500, 1000, 2000, 3000, 4000 and 6000 Hertz, respectively. Speech recognition testing was not conducted. The Veteran's service treatment records show that at the time of his separation examination in November 1966, his pure tone thresholds for the right ear were 5 (20), 5 (15), 5 (15), 10 (15), measured at 500, 1000, 2000, and 4000 Hertz, respectively. His pure tone thresholds for his left ear were 5 (20), 5 (15), 5 (15), 5 (10), measured at 500, 1000, 2000, and 4000 Hertz, respectively. Speech recognition testing was not conducted. The Board notes that the Veteran's audiometric scores show improvement in his hearing acuity from his pre-induction to his separation examination. The Board also notes that both the Veteran's pre-induction and separation examinations do not meet the criteria for qualification as a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. When audiometric test results at a service member's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, or even reflect a decrease in hearing acuity, 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran underwent a VA examination in August 2010. The audiometric testing reveals that the Veteran demonstrated auditory threshold losses of 40 decibels or greater in all of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz, bilaterally. Thus, his bilateral hearing loss is sufficiently severe to be considered a ratable disability by VA standards. 38 C.F.R. § 3.385. Hence, there is competent evidence confirming the Veteran has this claimed disability, which is a fundamental requirement of his claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the August 2010 VA examination, the examiner opined that it is not likely the Veteran's bilateral hearing loss is related to his service. He reasoned that, at the time of the Veteran's separation from service, based on the results of his separation physical, he had normal hearing acuity. The examiner did not provide an adequate explanantion as to why the Veteran's hearing loss was not related to service. The basis relied on by the examiner was that the Veteran had normal hearing upon separation from service. However, VA laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Hensley, 5 Vet. App. at 155, 159. The Veteran submitted a May 2011 opinion from his private audiologist. As stated earlier, the audiologist reported that the Veteran's asserted duties during service included serving as the coordinate plotter for howitzer which exposed him to heavy artillery noise, performing target practice about three times a week with many shells of ammunition, and qualifying for the M-14 rifle without hearing protection. The audiologist's opinion also discussed the Veteran's post-service employment, including employment at an airline as a ramp supervisor, which required that the Veteran wear ear muffs and ear plugs. Subsequently, for 20 years, the Veteran worked as a foreman for a steel mill and wore protective equipment as needed. The audiologist also considered the Veteran's family history of hearing loss and ear infections. The Board notes that the audiologist incorrectly cited the Veteran's pre-induction and induction hearing test results, but correctly noted that the Veteran's hearing was recorded to have improved at the time of his separation exam. The audiologist opined that the validity of the in-service tests was questionable, as hearing sensitivity cannot improve once nerve damage has occurred. Ultimately, the audiologist concluded that the Veteran's hearing loss is more likely that not attributable to his in-service noise exposure, and has the same etiology as the Veteran's tinnitus, which has been granted service connection. The Board notes that the audiologist provided a detailed opinion that discussed the Veteran's service records, his in-service and post-service treatment records, his lay statements, and post-service employment. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians, and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes that the VA examination did not adequately discuss the etiology of the Veteran's current hearing loss, or provide an opinion that considered all of the Veteran's post-service employment. The examiner also did not inquire about the onset of the Veteran's hearing loss and primarily based his negative etiological opinion on the separation exam showing normal hearing. In this regard, while the VA examiner only mentioned that the Veteran worked in the steel mill for many years, the private audiologist provided a 20 year time frame and noted the hearing protection provided to the Veteran. In addition, the private audiologist discussed the Veteran's employment with an airline and the protective equipment used. The Veteran's airline employment information is completely missing from the report of the August 2010 VA examination. The VA examiner also did not comment on the apparent improvement in hearing acuity shown at the time of the Veteran's separation from service. The May 2011 private audiologist's opinion is thus the most probative medical opinion of record, as it considered all pertinent in-service and post-service hearing tests, post-service employment, and provided the most detailed and reasoned argument. Such serves as positive evidence to support a grant of service connection for bilateral hearing loss. Gabrielson, 7 Vet. App. 36; Sklar, 5 Vet. App. 140. (CONTINUED ON NEXT PAGE) Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is current evidence of bilateral hearing loss, as well as evidence of in-service acoustic trauma. Significantly, the most probative medical opinion of record provides evidence of a medical nexus between the Veteran's service and his bilateral hearing loss. As such, the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 50. ORDER Service connection for bilateral hearing loss is granted ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs