Citation Nr: 1339558 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 10-40 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of the hearings is of record. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, bilateral hearing loss disability has been found to be causally related to active duty. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for bilateral hearing loss, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist, or of the Veterans Law Judge's duties under 38 C.F.R. § 3.103(c)(2) in conducting a hearing, is necessary. Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). 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, 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. 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). Here, the Veteran's service treatment records included his December 1965 enlistment examination. During that examination, audiological testing demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) 5 (15) 5 (10) LEFT 10 (25) 5 (15) 5 (15) 5 (15) 5 (10) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) Further, a PULHES profile demonstrated that the Veteran's "hearing and ears" were assigned a "1." The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In the report of the December 1965 enlistment examination, there was no indication that the Veteran complained of or was treated for bilateral hearing loss, and no diagnosis was provided. In a contemporaneous report of medical history, the Veteran did not indicate that he then or ever experienced bilateral hearing loss, and specifically denied then or ever experiencing "ear trouble." Ultimately, he was deemed qualified for active duty service. In April 1969, the Veteran underwent a separation examination. A clinical evaluation demonstrated that the Veteran's internal and external ear canals were normal. An audiological evaluation demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 10 0 With respect to his PULHES profile, the Veteran's hearing and ears were determined to be at a high level of fitness. Id. Further, there was no indication that the Veteran complained of or was treated for bilateral hearing loss or symptoms thereof. In a contemporaneous report of medical history, the Veteran denied then or ever experiencing "ear trouble" or "hearing loss." No diagnosis of bilateral hearing loss was provided. Ultimately, the Veteran was considered qualified for separation. The Veteran's service personnel records reveal that he served as a Security Policeman and that he was stationed in Vietnam. The Board also notes that the Veteran was granted entitlement to service connection for tinnitus in a March 2011 rating decision, at which time the RO explicitly recognized that "VA concedes a probability of high noise exposure" for the Veteran's particular military occupational specialty. The Veteran has asserted that his bilateral hearing loss was related to exposure to "loud noise and concussion" while working on a flight line. He also asserted that he was not issued hearing protection during his active duty service, and claimed that he was not provided a hearing test upon his active service separation. An April 2005 VA audiological consultation report demonstrated puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 20 40 LEFT 20 15 10 30 30 After the administration of other clinical tests, the diagnosis was normal to mild sensorineural hearing loss in the speech frequencies, bilaterally. In August 2005, the Veteran was provided with a VA audiological examination. During the examination, the Veteran reported that he was exposed to various noises during his active duty service, including small arms fire, grenade explosions, "some" unspecified explosions, and military aircraft while on a flight line. The Veteran also stated that he first noticed his bilateral hearing loss in July 2004. An audiological assessment demonstrated puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 25 30 40 LEFT 30 25 20 25 35 On speech discrimination testing using the Maryland CNC word list, the Veteran scored a 96 percent with his right ear and a 94 percent with his left ear. The diagnosis was mild to moderate high frequency sensorineural hearing loss, bilaterally. After reviewing the evidence of record, the examiner opined the Veteran's bilateral hearing loss was "not likely" the result of in-service noise exposure. The Veteran submitted a statement in February 2010. Therein, he provided further details as to the nature and frequency of his claimed in-service noise exposure. Significantly, the Veteran acknowledged that his bilateral hearing acuity was "OK" upon his separation from active duty service, but asserted that it was his understanding that hearing loss was "not immediate" and was "likely to emerge later in life." He then stated that he "began noticing the loss some 20 years ago and have experienced progressive problems since[. . .]." Thus, the Veteran stated that he first noticed his bilateral hearing loss sometime in 1990. In July 2010, the Veteran's spouse submitted a statement wherein she asserted that she knew the Veteran before his active duty service, remained in contact with the Veteran during his military service, and married him three months after his service separation. She then stated that she noticed that the Veteran did not hear as well upon separation as he did when he enlisted. She further stated that the Veteran's hearing acuity had continually worsened over the years to the extent that he was experiencing difficulty understanding speech, especially speech in soft voices. In July 2010, the Veteran submitted another statement in support of his claim. Therein, the Veteran claimed that the hearing test administered during his discharge examination was not adequate and that he was rushed through it. Further, the Veteran claimed that he misunderstood the February 2010 VA examiner's question as it pertained to when he first started noticing his bilateral hearing loss. He then asserted that his hearing loss became a "problem" 20 years ago, but that he first noticed bilateral hearing loss during his active duty service. He also stated that his bilateral hearing loss had worsened since his active service separation. The Veteran also submitted the results of a private audiological examination that was administered in October 2010, including a letter from the administrator of the examination. The examination administrator stated that the October 2010 test results demonstrated bilateral sensorineural hearing loss that was "more likely than not" related to the Veteran's described in-service noise exposure. The administrator then detailed the Veteran's in-service noise exposure, which included small arms fire, participation in the Tet offensive, rocket and mortar attacks, "constant" grenade blasts, and military aircraft while on a flight line. In February 2011, the Veteran underwent another VA audiological examination. After reviewing the relevant evidence of record, audiological testing demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 45 LEFT 15 20 15 30 35 Speech recognition testing using the Maryland CNC word list resulted in a score of 96 percent on the Veteran's right ear and 98 percent on the Veteran's left ear. The diagnosis was normal to moderately severe sensorineural hearing loss, bilaterally. The examiner then opined that the Veteran's current bilateral hearing loss was "less likely as not" related to military noise exposure. The examiner reached her conclusion "due to the normal hearing test done at separation." In November 2011, the Veteran testified during a Board hearing that his bilateral hearing loss started during his active duty service and that it had progressively worsened since then. He also reiterated the various sources of his in-service noise exposure. With respect to the fact that his service treatment records did not reflect complaints of or treatment for bilateral hearing loss, the Veteran explained that, although he experienced a decrease in his hearing acuity, it was not severe enough to interfere with his ability to discharge his duties. As such, he did not feel treatment was necessary. He then stated that his post-service occupations did not expose him to acoustic trauma. In its February 2013 decision, the Board found that the Veteran's December 1965 entrance examination revealed evidence of hearing loss, pursuant to Hensley, and determined that neither the August 2005 nor the February 2011 VA examiners addressed the issue of whether the Veteran's preexisting bilateral hearing loss was aggravated beyond the natural course of the disorder during service. Furthermore, the Board found that neither examiner provided an adequate rationale in support of the conclusions reached and, for those reasons, found that the August 2005 and February 2011 VA examinations were inadequate for purposes of determining entitlement to service connection for bilateral hearing loss. The August 2005 VA examiner opined that the Veteran's bilateral hearing loss was "not likely" the result of noise exposure in the military without elaboration. The February 2011 VA examiner opined that the Veteran's bilateral hearing loss was "less likely as not" related to military noise exposure. The examiner stated that his opinion was based on the Veteran's normal hearing test upon service separation without further elaboration. Finally, the February 2011 VA examiner recommended that the Veteran undergo an Ears, Nose, and Throat (ENT) consultation due to "the abnormal ARD" in order to rule out a retrocochlear site of lesion. Clinical results elicited during an audiological examination serving as the basis for a recommendation that the Veteran undergo an ENT consultation suggested that the examiner detected the potential presence of a disorder underlying the Veteran's bilateral sensorineural hearing loss. However, the examiner did not provide an explanation as to why an ENT consultation was recommended. As such, in its February 2013 decision, the Board also found that a remand was warranted in order for a VA examination to address whether an ENT consultation was required in order to ascertain the likelihood that the Veteran's bilateral hearing loss was etiologically related to his active duty service. Pursuant to the Board's February 2013 remand instructions, the February 2011 VA audiologist reviewed the claims file and provided an addendum opinion in February 2013. The VA examiner reiterated that there was no evidence of hearing loss in the military and explained that her opinion that it was less likely as not that the Veteran's hearing loss was related to military noise exposure remained the same because his hearing was normal at separation. The VA examiner indicated that there was "no scientific basis for the existence of delayed onset hearing loss due to acoustic trauma." Furthermore, the VA examiner opined that it was less likely as not that the Veteran's tinnitus was related to hearing loss because his hearing was normal at separation from service. The examiner again indicated that the Veteran should be seen for an ENT consultation to rule out a retrocochlear site of lesion, but explained that "this would not impact my opinion." In this case, the Board concludes that the evidence, as it now stands, is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service acoustic trauma. In reaching this conclusion, the Board recognizes that the VA examiners opined that the Veteran's hearing loss was less likely than not related to service due to the normal hearing documented at service separation. However, there is positive evidence relating the Veteran's bilateral hearing loss to his in-service acoustic trauma. The Board finds that the October 2010 private audiological examination administrator's opinion is supported by the evidence in the claims file including the Veteran's conceded acoustic trauma during his duties as a Security Policeman in Vietnam. Although the Board could remand for another nexus opinion regarding the etiology of the Veteran's claimed disability due to the fact that the February 2013 addendum opinion did not adequately discuss the results of the December 1965 entrance examination and failed to address the credible and competent lay statements concerning in-service hearing loss, the Board finds that the medical evidence is sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Accordingly, resolving any doubt in favor of the Veteran, the Board will grant service connection for bilateral hearing loss disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs