Citation Nr: 1338313 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 03-21 694A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from May 1967 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the claim in May 2009, December 2010, March 2012, and September 2012. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (VLJ) in June 2012. A transcript is of record. FINDING OF FACT The Board resolves doubt in the Veteran's favor by finding that bilateral hearing loss is etiologically related to noise exposure during active service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board is granting in full the benefit sought on appeal as it pertains to the claim for service connection for bilateral hearing loss. Any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). For 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 above 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. See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Veteran's December 1966 enlistment audiological examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -5 (5) -- -5 (0) LEFT -5 (10) -10 (0) -5 (5) -- 5 (10) (Prior to November 1967, service departments used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. For purposes of comparison between the service audiometric data and more recent VA audiometric data, the table above shows the ASA measurements recorded in service, with the comparable ISO (ANSI) measurements in adjacent parentheses.) In August 1970, the Veteran was treated for right ear symptoms and the medical professional noted decreased bilateral audiological acuity. In connection with this treatment, other records, also dated in August 1970, recommend the Veteran undergo audiological testing upon resolution of his ear infection. The results of such testing are not of record. The Veteran's February 1971 separation audiological examination revealed 15/15 spoken and whispered voice test results, bilaterally. Under summary of defects and diagnoses, the examiner noted that audiograms denoted some loss of hearing in both the left and right ears and that further testing was advised to determine the exact extent of the loss. There are no audiograms of record. The Veteran underwent a VA examination in March 1971, at which time he reported being treated for several ear infections during service and having trouble hearing and understanding people. He also indicated that he had been told to have his ears checked prior to discharge from service, but had not had a chance before leaving service. It was noted that the Veteran had worked in a Navy engine room for one and one-half years. There are two audiological evaluations of record dated in March 1971. On one, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 - 5 LEFT 5 5 5 - 25 On the other, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -5 0 LEFT -10 -10 -5 -5 20 It was noted on the second audiological evaluation that the results had been interpolated from ISO to ASA standard. Speech discrimination scores were 98 percent in the right ear and 100 percent in the left ear on both audiological evaluations. The examiner did not provide an etiological opinion. A May 2004 VA audiological examination reports the Veteran's continued account of in-service acoustic trauma and post-service symptoms. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 25 LEFT 15 15 15 25 75 Citing findings of service separation audiological findings and April 1971 VA examination findings of "normal pure tone thresholds through 6000 hertz in both ears," the examiner opined that the Veteran's bilateral hearing loss was not likely related to military service. A November 2012 VA audiological examination documented the Veteran's account of in-service noise exposure, relevant symptomatology and medical history of the condition. On audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 35 40 LEFT 10 20 35 40 65 The examiner opined that diagnosed bilateral hearing loss was not likely related to military service because the Veteran presented with normal bilateral hearing at the time of entry into service and on VA examination months after separation. The Board requested an opinion from a specialist at the Veterans Health Administration (VHA) in September 2013. The opinion was received in October 2013. The specialist opined that it was at least as likely as not that the Veteran's current hearing loss is related to military noise exposure. In providing a rationale, the specialist noted that the Veteran worked in the engine room for one and one-half years, which was a high probability of noise exposure. The specialist further explained that although the Veteran's thresholds were within the normal limits at all frequencies one month post-discharge, there was a significant threshold shift at 4000 Hertz in the left ear, which is evidence of early noise damage. The medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. The evidence also suggests a link between this hearing loss and the Veteran's military service. In this regard, the Veteran has alleged military acoustic trauma in the form of diesel engine noise, gun fire and percussion grenades, all experienced without hearing protection. The Board finds his assertions both competent and credible. While the May 2004 and November 2012 VA examiners provided negative nexus statements, both examiners failed to recognize shifts in hearing acuity between the Veteran's December 1966 enlistment audiological examination and the March 1971 VA audiological examination, performed one month after his discharge from active service. As such, the May 2004 and November 2012 VA opinions are not afforded any probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The shift in hearing acuity between December 1966 and March 1971 was specifically addressed in the October 2013 specialist's opinion. The Board finds the specialist's opinion to be competent and highly probative. As the Veteran's contentions about his in-service noise exposure and post-service symptoms are credible and supported by the most probative medical evidence of record, the Board will resolve all doubt in his favor by finding that service connection for bilateral hearing loss is warranted as etiologically related to noise exposure during active service. ORDER Service connection for a bilateral hearing loss is granted. ____________________________________________ D. VAN WAMBEKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs