Citation Nr: 1340523	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO. 10-26 404	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1961 to April 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.


FINDINGS OF FACT

1.  The Veteran has current bilateral hearing loss disability for VA purposes.

2.  The Veteran had in-service noise exposure.

3.  The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss disability is etiologically related to active service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss disability have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA Duty 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.

Service connection for bilateral hearing loss

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nichols, 21 Vet. App. 303, 309 (2007).  

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 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 the 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 experienced bilateral hearing loss as a result of in-service noise exposure.  The Veteran has asserted that while working extensively on the flight line operating sweepers, he was exposed to acoustic trauma, such as jet engines.  Service personnel records indicate that the Veteran served in the Airforce from July 1961 to April 1965.  His DD Form 214 reflects that his military occupational specialty was a buildings and grounds specialist, and that his last duty assignment was with a Civil Engineering Squadron.  The Board finds that noise exposure is consistent with the conditions and circumstances of the Veteran's service.  38 U.S.C. § 1154(a) (West 2002).  Thus the Board acknowledges in-service acoustic trauma.

Service medical records contain the results from an audiometric test conducted at enlistment in July 1961.  Service department reports of audiometric testing dated prior to November 1, 1967 are presumed to have been reported in American Standards Associates (ASA) units, unless otherwise indicated.  The pure tone threshold results converted to International Organization for Standardization (ISO) units were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
20
x
15
LEFT
30
20
20
x
15

Service medical records also contain the results from an audiometric test conducted at separation in April 1965, the pure tone threshold results converted to ISO units were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
15
10
LEFT
15
10
15
20
15

VA treatment records dated from 2006 include a June 2006 outpatient treatment note which includes as medical history that the Veteran had VA hearing aids.  A July 2006 VA audiology note indicates the Veteran had been issued binaural hearing aids in March 2006.  In September 2008, he was noted to have eustachian tube dysfunction, with inflammation of the tympanic membranes, bilaterally.  He wore hearing aids.

In July 2007 the Veteran was afforded a VA audiological examination.  The examiner reviewed the claims file, medical history, and noted the Veteran's in-service noise exposure.  The examiner also noted that the Veteran reported his alleged hearing loss made it difficult, even with the use of hearing aids, to hear people unless they are right in front of him.  Pure tone threshold and Maryland CNC speech recognition tests were also conducted, the results of which were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
60
60
80
LEFT
35
45
60
65
65

Maryland CNC right ear: 80%
Maryland CNC left ear: 84%

The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally.  She opined that the Veteran's audiometric testing performed at enlistment and separation revealed bilateral hearing within normal limits.  The examiner ultimately concluded that hearing loss was not caused by or a result of military noise exposure.

A December 2010 VA treatment record from a VA ENT physician indicates that the Veteran's sensorineural hearing loss has a noise trauma component.  An addendum by the same physician in February 2012 contains an opinion that it is more likely than not that the Veteran's hearing loss is associated with noise trauma that occurred during his military duties.  No rationale for this opinion is of record.

As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold at any frequency (500 HZ - 4000 HZ) is 40 decibels or greater, or when the threshold is at least 26 decibels at any three frequencies (500 HZ - 4000 HZ) or when the Maryland CNC test scores are less than 94 percent.  The July 2007 VA examination results reflect that the Veteran's hearing loss meets these criteria, thus the Board finds that the Veteran has current bilateral hearing loss disability for VA purposes.

The Board finds that the evidence is in equipoise with regard to the Veteran's claim.  Both the July 2007 VA examination report and the treating VA physician's February 2012 opinion contain inadequacies.  As discussed, the VA examiner relied exclusively on the lack of in-service hearing loss as the rationale for her negative opinion.  The Court in Hensley indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.  Hensely v. Brown, 5 Vet. App. 155, 157 (1993).  The Court in Hensley also held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensely v. Brown, 5 Vet. App. 155, 157 (1993).  However, here the VA examiner noted that the Veteran's 1961 audiological test results were normal, even though his threshold at 500 Hz for both ears was 30 decibels.  Since the examiner relied solely on the fact that the Veteran had "normal" auditory thresholds in service as the basis of her conclusion, the report is inadequate for VA purposes.  Additionally, while the VA ENT physician provided a positive nexus opinion in his February 2012 treatment note, he did not provide any rationale for his opinion.  As such, the Board finds that evidence with regard to the etiology of the Veteran's hearing loss to be in relative equipoise.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, the Board will grant service connection for the Veteran's bilateral hearing loss disability.

ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs