Citation Nr: 1340205	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-31 176	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Jenkins, Associate Counsel 


INTRODUCTION

The Veteran had active military service from June 1959 to June 1962.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan.


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

The criteria for service connection, for bilateral hearing loss, have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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 is necessary.

Legal Criteria

Service connection may be established for a disability resulting from a disease or injury 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, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).  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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

VA has specifically defined the term "disability" for service connection claims involving impaired hearing.  38 C.F.R. § 3.385 (2013).  "[I]mpaired 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, 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 (2013).  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See 38 C.F.R. § 3.385 (2013); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Analysis 

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that his current bilateral hearing loss is related to his period of active service.

The May 2012 VA examination report and the August 2012 and March 2011 private audiologist reports both indicate a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385 (2013).  Accordingly, the first Shedden element is met.  

With respect to evidence of incurrence of an in-service disease or injury, the Veteran's June 1959 entrance examination report indicates that the Veteran's ears were normal and that his bilateral whisper test score was 15/15.  Audiological testing was not conducted at the Veteran's entrance examination.  The Veteran's separation examination report is dated April 1962.  The Board notes that service department audiometer test results prior to October 31, 1967, are assumed to have been reported in American Standards Association (ASA) units, rather than the current International Standards Organization (ISO) units.  Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz.  When the Veteran's April 1962 audiometric results are converted to the current ISO standard, they are as follows:


HERTZ

250
500
1000
2000
4000
RIGHT
30
25
15
10
40
LEFT
15
15
15
25
45

The Board notes that the Veteran's separation audiometric test results reflect not only a degree of bilateral hearing loss per Hensley, but also a bilateral hearing loss disability for VA purposes.  38 C.F.R. § 3.385 (2013); Hensley v. Brown, 5 Vet. App. 155 (1993).  Accordingly, the second Shedden element is met.  

With respect to a nexus opinion, the Board notes that there are conflicting nexus opinions of record.  

The Board notes that there is a March 2011 private audiologist report of record.  However, the report does not contain an opinion concerning the etiology of the Veteran's hearing loss.

The Veteran was provided a VA audiological examination in May 2012.  The VA audiologist opined that the Veteran's bilateral hearing loss was not at least as likely as not related to his military service.  In support of this opinion, the examiner noted that the Veteran's separation audiometric examination revealed that his hearing was within normal limits bilaterally at separation. 

In August 2012, the Veteran underwent a private audiological examination.  Dr. D.H. opined that the Veteran's hearing loss was more than likely due to the noise exposure while in basic training and aggravated by further noise during the Veteran's service as a communication officer.  Dr. D.H. reasoned that although post-service occupational noise exposure certainly aggravated the Veteran's hearing loss, the initial loss to the point where the Veteran was not employable as a police officer was noted prior to his occupation, so more than likely his hearing loss was mostly secondary to his military exposure. 

The Board finds that the May 2012 VA audiological opinion is inadequate for adjudicating the Veteran's claim for several reasons.  First, the only rationale for the VA audiologist's negative opinion was that the Veteran's separation audiometric examination revealed hearing within normal limits bilaterally.  The United States Court of Appeals for Veterans Claims (Court) has held that the lack of in-service evidence of hearing loss is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  See also Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss).  Second, the examiner inaccurately stated that the Veteran's hearing was within normal limits at separation.  As noted above, the Veteran's audiometric test results at separation indicated a bilateral hearing loss disability for VA purposes.  38 C.F.R. § 3.385 (2013); Hensley v. Brown, 5 Vet. App. 155 (1993).  For the reasons stated above, the Board finds the May 2012 audiologist's opinion inadequate for adjudicating the Veteran's claim for entitlement to service connection for bilateral hearing loss.  

Regarding the etiology of the Veteran's bilateral hearing loss, the Board finds that the August 2012 private opinion by Dr. D.H. is the most probative evidence of record.  Dr. D.H. opined that the Veteran's hearing loss is more than likely due to noise exposure while in basic training and during the Veteran's service as a communication officer.  As Dr. D.H.'s opinion followed an examination of the Veteran, as well as consideration of the Veteran's separation audiometric test results, reported medical history, and current complaints, the opinion is highly probative.  

Thus, resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted.  38 C.F.R. § 3.102 (2013).  See also 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


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