Citation Nr: 1337522 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-25 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois. A review of the Virtual VA paperless claims processing system reveals documents that are duplicative of the evidence of record. The Veterans Benefits Management System (VBMS) does not include any documents. The issue of entitlement to service connection for a left ear hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has a current right ear hearing loss disability that was incurred in service. CONCLUSION OF LAW Entitlement to service connection for a right ear hearing loss disability is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under 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. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). VA fulfilled its duty to notify when it provided pre-adjudication VCAA notice by letter in September 2009. Because the Veteran's claim for a right ear hearing loss disability is granted, as discussed below, any error as to the duty to assist the Veteran is harmless error. Service Connection A veteran is entitled to VA disability compensation for service connection if the facts establish that a disability resulted from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A § 1154. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is a presumption of service connection (rebuttable only by "clearly attributable intercurrent causes") for a chronic disease which manifests during service and then again "at any later date, however remote." 38 C.F.R. § 3.303(b); Groves v. Peake, 524 F.3d 1306, 1309 (2008). The "chronic" diseases that may be subject to presumptive service connection are listed under 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that only those chronic diseases under 38 C.F.R. § 3.309(a) may be considered for presumptive service connection). Regarding claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) found 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). However, the Court held that 38 C.F.R. § 3.385, discussed below, operates to establish when there exists a hearing disability for VA purposes. Id. at 159. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 Veteran contends that he has a bilateral hearing loss disability as the result of his active duty service. For example, in the October 2003 Informal Hearing Presentation, the Veteran through his representative asserts that his hearing loss is a result of noise exposure in service. The Veteran's service treatment records show that the March 1964 entrance examination contains no audiogram results and that the Veteran was diagnosed with wax in the right ear, which was not considered disqualifying. The service treatment records include an August 1967 audiogram, performed upon the Veteran's discharge from active service, that shows right ear auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were, respectively, 20, 15, 25, 45, and 55 decibels after converting from ASA units to ISO units. The Veteran was diagnosed with hearing loss in the right ear for the frequencies of 3000 to 6000 Hertz. The Veteran was given a VA audiological evaluation in June 2009. The right ear auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were, respectively, 25, 30, 30, 45, and 60 decibels. The Veteran was afforded a VA audiological examination in November 2009. The Veteran reported being exposed to noise from aircraft carrier and the flight deck in service. The right ear auditory thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were, respectively, 25, 25, 35, 65, and 70 decibels. The Veteran was diagnosed with bilateral sensorineural hearing loss. Because the June 2009 and November 2009 audiograms show that there is at least one frequency from 500 to 4000 Hertz in which the auditory threshold is greater than 40 decibels, the Veteran has a current right ear hearing loss disability under the VA regulations. 38 C.F.R. § 3.385. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). In the March 1964 entrance examination, the Veteran was diagnosed with wax in the right ear, which was not considered disqualifying. However, a hearing loss defect was not noted therefore the presumption of soundness is applicable. VA can rebut the presumption of soundness by showing (1) that the condition clearly and unmistakably existed prior to service, and (2) that the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). There was no audiogram performed upon entry into service and whispered voice test results were 15/15. There is no clear and unmistakable evidence of record demonstrating that hearing loss of the right ear pre-existed service and was not aggravated by service. The August 1967 audiogram, performed upon discharge from service, shows that there is at least one frequency from 500 to 4000 Hertz in which the auditory threshold is greater than 40 decibels. Further, the Veteran was diagnosed with right ear hearing loss for the frequencies of 3000 to 6000 Hertz. Thus, the Veteran had a right ear hearing loss disability in service. 38 C.F.R. § 3.385. Medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a veteran had a chronic condition in service, and that the veteran still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008); see also 38 C.F.R. § 3.303(b). The November 2009 examiner's diagnosis of sensorineural hearing loss is probative as to the determination of whether there is a nexus between the Veteran's current sensorineural hearing loss disability and the hearing loss disability diagnosed in service. Sensorineural hearing loss is an organic disease of the nervous system, which is a named chronic condition subject to presumptive service connection under 38 C.F.R. § 3.309(a). The Veteran is currently diagnosed with right ear sensorineural hearing loss, per the November 2009 VA audiology examination. Though the August 1967 service treatment record does not specify whether the Veteran's right ear hearing loss disability for the frequencies of 3000 to 6000 Hertz was sensorineural hearing loss, the Board resolves any reasonable doubt in favor of the Veteran and finds that the Veteran's right ear hearing loss disability in August 1967 was sensorineural hearing loss. 38 C.F.R. § 3.102. Moreover, based on the audiological testing upon separation examination and the diagnosis of hearing loss in the right ear at that time, the evidence shows that hearing loss was incurred in service. Accordingly, the benefit of the doubt has been accorded to the Veteran and service connection is warranted for right ear sensorineural hearing loss. ORDER Entitlement to service connection for a right ear hearing loss disability is granted. REMAND Under the duty to assist, the Veteran should be scheduled for another VA examination to determine the nature and the etiology of the Veteran's left ear hearing loss. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the nature and etiology of the Veteran's left ear hearing loss. Make the claims file available to the examiner for review of the case. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service treatment records, and lay statements. The examiner should note that this case review took place. After reviewing the claims folder and conducting the examination, the examiner is asked to opine whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's left ear hearing loss is related to military service, including presumed noise exposure therein. Because the Veteran had no hearing loss defect noted on his entry examination, presume that the Veteran's hearing was sound upon entry into active service. The examiner's attention is directed to the August 1967 auditory threshold at 4000 Hertz, which was 30 decibels (in ISO units) and indicates some degree of hearing loss under Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The examiner's opinion should be based on the results of the examination, a review of the evidence of record, and sound medical principles. The examiner should provide complete rationale for all opinions expressed. The examiner is advised that the Veteran is competent to report his symptoms and history. 2. After completing the development and conducting any additional development that is deemed warranted, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs