Citation Nr: 1337225 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-38 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from February to July of 1981 and from December 1982 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the benefit sought on appeal. Jurisdiction of the Veteran's claims file is currently at the Salt Lake City, Utah RO. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ) in July 2011. A transcript of the hearing is associated with the claims file. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's current bilateral sensorineural hearing loss is related to his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 hearing loss, 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, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159. 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, 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. Factual Background and Analysis The Veteran contends that his currently diagnosed bilateral hearing loss is attributable to his significant noise exposure during service. Namely, he reports that during service he worked on the flight line and was exposed to significant aircraft noise, as well as noise from satellite equipment and generators. There is also evidence of some post-service noise exposure, at which time he was provided with more sophisticated hearing protection. There is no question that the Veteran has a current hearing loss disability for VA purposes. Importantly, the December 2010 VA examination shows that the requirements of 38 C.F.R. § 3.385 were met. Thus, the question before the Board is whether the Veteran's currently diagnosed bilateral hearing loss is related to his military service. For the reasons outlined below, the Board finds the positive and negative evidence as to the etiology of the Veteran's bilateral hearing loss is in relative equipoise and all reasonable doubt is found in the Veteran's favor and service connection is granted for bilateral hearing loss. First, the Board finds that the Veteran's in-service exposure to noise is consistent with the nature of his duties during service. As such, exposure to flight line noise is presumed. At enlistment physical examination in 1981, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 25 10 5 0 0 Periodic audiological testing performed in October 1985 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 15 LEFT 10 10 5 5 10 The Veteran was not afforded a VA audiological examination at service separation. However, a National Guard hearing test dated in April 1990 showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 5 LEFT 5 0 0 5 15 Immediately following service, the Veteran went to work for what is now known as Lockheed Martin. From the beginning of his career there, he was noted to have high frequency hearing loss and was carefully monitored to preserve his hearing. In an August 1990 audiogram, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 10 10 LEFT 10 10 5 15 20 Throughout his time at Lockheed Martin, his hearing acuity continued to decrease. The Veteran was afforded a VA examination in October 2009, during which the diagnosis of bilateral sensorineural hearing loss was confirmed. The examiner provided a negative nexus opinion. In reaching this conclusion, the examiner found the Veteran had normal hearing upon enlistment, normal right ear hearing noted in April 1990 and August 1990 audiograms, and mild hearing loss at 6000 Hz in the left ear. The examiner noted that the mild hearing loss in the left ear would not qualify as a hearing loss disability for VA purposes at that time. Further, the examiner indicated that hearing loss for VA purposes did not appear in the left year until 1998 and not until 2005 in the right ear. As such, he found that the Veteran's bilateral hearing loss is less likely than not related to his military service. In September 2010, the Veteran's treating otolaryngologist from the 1900s indicated that his office does not keep treatment records after 7 years, but he recalled treating the Veteran in 1990s for bilateral hearing loss. He recalled at the time that the Veteran had high frequency neurosensory hearing loss in both ears. The otolaryngologist felt that the hearing loss was "consistent with noise exposure." The treating physician further noted that the Veteran's "history is consistent with noise exposure with his time of service in the military and certainly cannot be discounted as part of the hearing loss that he is exhibiting today." Further, he noted that after review of the Veteran's 2009 VA examination, his high frequency sensorineural hearing loss is symmetrical in nature, which is consistent with a noise-induced hearing loss. Finally, the otolaryngologist opined that the Veteran bilateral hearing loss "probably started while he was in the military and exposed to noise." The Veteran was provided another VA examination in December 2010, wherein the examiner provided a negative nexus opinion with respect to the Veteran's bilateral hearing loss. Noted was the Veteran's history of in-service noise exposure and post-service occupational noise exposure. This audiologist essentially provided the same reasons for her opinion as the 2009 VA examiner. She further cited some medical treatise evidence indicating that it is unlikely that there is a delayed onset of hearing loss following significant noise exposure. She found that the mild hearing loss in the left ear at 6000 Hz was likely caused by his military noise exposure, but those readings are not considered disabling for VA purposes and thus, it is not likely that his current left ear hearing loss is related to service. She opined that the Veteran's right ear hearing loss was not caused by or the result of military noise exposure. As to whether the current bilateral hearing loss disability is related to noise exposure in service, the Board finds that the September 2010 private opinion and the October 2009 and December 2010 VA examiners' opinions are probative and competent evidence. As to the private opinion, certainly the Veteran's treating otolaryngologist is competent to comment/opine as to the etiology of the Veteran's hearing. Moreover, the private otolaryngologist included a rationale to support his opinion. He also based his opinion on the competent and credible history reported by the Veteran, his history of treating the Veteran since the 1990s, and his expertise as an otolaryngologist that is consistent with the medical evidence of record. The Board finds the Veteran's lay statements concerning excessive noise exposure are not only competent in light of his military occupational specialty (equipment specialist), but also are credible, to show that he has continued to suffer from impaired hearing post-service. His lay statements, therefore, have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). With respect to the October 2009 and December 2010 opinions from two different VA examiners, the Board has considered their negative nexus opinions, as well as their opinions that the Veteran may have incurred left sensorineural hearing loss at high frequencies during service. In addition, both opined that the Veteran's bilateral hearing loss was less likely than not due to noise exposure during service despite the clear evidence showing threshold shifts between enlistment and the months following discharge. In light of the Veteran's competent assertions as to the onset of his hearing loss and its progressive worsening, and the private medical opinion attributing his current bilateral hearing loss disability to his military service, the Board concludes that the evidence is at least in relative equipoise as to whether his current bilateral hearing loss had its onset in service or is otherwise directly related to noise exposure therein. When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, having resolved reasonable doubt in favor of the Veteran, the Board concludes service connection is warranted for bilateral hearing loss. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs