Citation Nr: 1338626 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-15 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006, January 2008, and October 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This case was remanded by the Board in July 2013 for additional development, to include requesting an addendum opinion to a March 2007 fee-based VA audiological examination report. Such an opinion was obtained in August 2013. As such, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that his right ear hearing loss began in service. CONCLUSION OF LAW Service connection for a right ear hearing loss disability is established. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board grants service connection for right ear hearing loss. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for sensorineural hearing loss may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 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, or 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. Here, a review of the Veteran's service personnel records reveals that he served as a helicopter repairmen in the Army. His DD Form 214 further indicates that he received an Aircraft Crewman Badge and trained with the rifle to expert level. At the preenlistment examination in August 1967, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows (results below are in ISO (ANSI) units, converted from the original document's ASA units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 N/A -5 LEFT 10 5 0 N/A 0 At the November 1967 flight physical during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows (results below are in ISO (ANSI) units, converted from the original document's ASA units): HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 0 LEFT 15 5 10 10 -5 At the June 1969 annual physical during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 35 35 45 LEFT 15 10 0 15 0 At the March 1970 annual physical examination during service, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 15 15 LEFT 5 10 10 15 10 At his July 1970 service separation examination, speech audiometry was not tested, but puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 N/A 10 LEFT 0 5 5 N/A 10 Thus, significantly, the June 1969 annual physical clearly demonstrated hearing loss for VA purposes in the right ear while the Veteran was still in service. At a March 2007 fee-based VA examination, the Veteran reported a history of military noise exposure to include repairing and flying helicopters in Vietnam for 1 year, and in Europe for 18 months. This is consistent with the military occupational specialty listed in his service personnel records, as discussed above. He reported post-service noise exposure of being a grocery store meat cutter for 31 years, and having recreationally hunted prior to his Vietnam service. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear; puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 35 60 LEFT 15 10 10 20 20 Again, the evidence of record reflects that the Veteran has a current diagnosis of right ear hearing loss for VA purposes. The March 2007 VA examiner assessed normal hearing in the right ear through 2000 Hertz with a mild-to-moderate sensorineural hearing loss from 3000 Hertz through 8000 Hertz . However, the March 2007 VA examiner went on to opine that the Veteran's records suggested that his present hearing loss occurred after leaving service and was not caused by in-service noise exposure. In support of this conclusion, the examiner cited the September 1967 hearing test at enlistment which showed normal hearing in both ears. The examiner also cited the March 1970 hearing test which showed normal hearing in both ears, and, although there was no hearing test available at the Veteran's discharge from service in September 1970, the examiner indicated that it would be unlikely to have any change in hearing acuity in the 6 months from March 1970 to September 1970. As such, the examiner concluded that the Veteran's service treatment records did not support his claim of service connected hearing loss. However, in its July 2013 Remand, the Board emphasized that the March 2007 VA examiner did not mention the hearing acuity documented on the Veteran's June 1969 annual physical, which demonstrated in-service hearing loss for VA purposes in the right ear. As such, the Board found the March 2007 fee-based VA audiological examination to be inadequate and remanded the claim to obtain an addendum opinion. Pursuant to the Board's 2013 remand instructions, an additional opinion was obtained in August 2013. In it, the VA examiner also opined that it was less likely as not (less than 50 percent probability) that the Veteran's current right ear hearing loss was caused by in-service noise exposure. The examiner acknowledged that the August 1967 preenlistment examination showed normal hearing; that the June 1969 audiogram showed threshold shifting in both ears, mostly in the right ear; and that the July 1970 separation examination showed normal hearing with a 10 to 20 decibel threshold shift in the right ear. The examiner noted that the Veteran left service in 1970 with normal hearing, with significant 5 to 20 decibel threshold shifting, and explained that the June 1969 audiogram was a "temporary" threshold shifting, with some of the hearing returning in the 1970 audiogram. The examiner further explained that temporary threshold shifting can occur with acoustic trauma, and that hearing may recover or may not recover afterwards. As such, the examiner opined that the Veteran's right ear hearing loss began in service, as evidenced by the above-mentioned significant threshold shifting, but that it was within normal limits upon the Veteran's separation from service in 1970. The examiner thus concluded that any additional hearing loss of the right ear occurred after service separation from additional noise exposure. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). In this case, despite the apparently negative nexus opinions expressed by the audiologists in the March 2007 and August 2013 examination reports, the Board finds that a preponderance of the evidence shows that the Veteran's right ear hearing loss had its onset during his period of active duty service, regardless of whether it met the regulatory requirements for hearing loss disability for VA purposes at the time of service separation. Indeed, the August 2013 VA audiologist explicitly concluded that the Veteran's right ear hearing loss began in service, as evidenced by the significant threshold shifting, and that it was caused by in-service acoustic trauma. Therefore, the Board concludes that the August 2013 VA opinion is positive in that it noted a hearing loss in service caused by acoustic trauma. Therefore, entitlement to service connection for right ear hearing loss is warranted. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, given that the Veteran currently meets the definition of right ear "hearing loss" as set forth in 38 C.F.R. § 3.385, and because there was evidence of right ear hearing loss in service due to acoustic trauma, the Board finds that it is as likely as not that the Veteran's currently diagnosed right ear hearing loss is traceable to military service. The Board therefore concludes that the evidence of record provides an adequate basis on which to grant service connection for right ear hearing loss. ORDER Entitlement to service connection for right ear hearing loss is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs