Citation Nr: 1340943 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-28 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an upper respiratory disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1987 to January 1994. This matter comes on appeal before the Board of Veterans' Appeals (Board) from December 2008 and April 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for an upper respiratory disorder and service connection for bilateral hearing loss, respectively. The Veteran testified before the undersigned in a December 2012 video conference Board hearing, the transcript of which is included in the Virtual VA electronic claims file. FINDINGS OF FACT 1. In December 2012, prior to the promulgation of a decision in the appeal for service connection for an upper respiratory disorder, the Veteran requested that the appeal be withdrawn. 2. Symptoms of bilateral hearing loss were chronic in service. 3. The Veteran has currently diagnosed bilateral sensorineural hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of service connection for an upper respiratory disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the December 2012 Board hearing, the Veteran withdrew the appeal regarding the issue of service connection for an upper respiratory disorder; therefore, there remain no questions of fact or law for appellate consideration regarding that issue. Accordingly, the Board does not have jurisdiction to review the appeal regarding the claim for service connection for an upper respiratory disorder, and it is dismissed. In regard to the issue of service connection for bilateral hearing loss, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In view of the favorable disposition herein of the claim for service connection for bilateral hearing loss, additional discussion of VCAA duties to notify and assist is unnecessary. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). The condition of bilateral sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, generally, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). Service connection may be granted for certain chronic diseases, to include sensorineural hearing loss, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. In evaluating claims of service connection for hearing loss, the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered a "disability" for the purposes of applying the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Service Connection for Bilateral Hearing Loss The Veteran contends that he developed a bilateral hearing loss disability due to in-service acoustic trauma, specifically due to exposure to cannons and artillery. Having reviewed the evidence, the Board first finds that the Veteran was exposed to loud noises (acoustic trauma) during service. The Veteran's DD Form 214 reflects that the military occupational specialty was cannon crewmember. In-service acoustic trauma was also established by the RO in the April 2011 rating decision for the grant of service connection for tinnitus. The Board next finds that the evidence is in equipoise as to whether the Veteran experienced chronic bilateral hearing loss symptomatology during service. During the December 2012 hearing, the Veteran testified that the noise from cannons "would hurt your ears so bad that it would feel like they were bleeding." The Veteran also testified that despite being provided earplugs, he was not always able to wear them while firing artillery or cannons. Although the Veteran did not complain of hearing loss during service, service treatment records indicate that the Veteran underwent an auditory threshold shift during service. Specifically, in the June 1987 service entrance medical examination report, a service examiner reported that the Veteran's right ear auditory threshold levels were 10 dB at 500 Hz, 15 dB at 1000 Hz, 20 dB at 2000 Hz, 25 dB at 3000 Hz, and 10 dB at 4000 Hz. Left ear auditory threshold levels were 20 dB at 500 Hz, 20 dB at 1000 Hz, 20 dB at 2000 Hz, 25 dB at 3000 Hz, and 15 dB at 4000 Hz. In the November 1993 service discharge medical examination report, a service examiner reported that the Veteran's right ear auditory threshold levels were 20 dB at 500 Hz, 20 dB at 1000 Hz, 50 dB at 2000 Hz, and 30 dB at 4000 Hz. Left ear auditory threshold levels were 25 dB at 500 Hz, 20 dB at 1000 Hz, 25 dB at 2000 Hz, and 20 dB at 4000 Hz. Such an auditory threshold shift during service is some evidence of worsening of bilateral hearing loss during service. Even though the Veteran did not report chronic bilateral hearing loss during service, there was an audiometric threshold shift (worsening) that occurred during service. Such audiometric threshold shift is analogous to "chronic" symptoms of hearing loss during service, as it reflects some permanent worsening of hearing during service. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran experienced chronic bilateral hearing loss symptomatology during service. The Board notes that such threshold shifts indicate a permanent worsening of hearing in service, even though the hearing does not yet severe enough to be recognized as a disability. See 38 C.F.R. § 3.303(b). Where there is a showing of chronic symptoms during service, then a showing of continuity of symptomatology after service is not required to support a finding of chronicity, and subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. The Board next finds that the evidence is in equipoise as to whether the Veteran has current "disability" of hearing loss of both ears that meets the VA disability criteria of 38 C.F.R. § 3.385. Weighing in favor of a hearing loss disability, is a January 2010 private audiology examination report where pure tone thresholds were presented graphically. The Board may interpret these results into numerical results if able to do so. See Savage, 24 Vet. App. 259 (noting that the Board may engage in such interpretation if it felt it had the expertise); see also Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Court cannot engage in such interpretation because it involves fact finding but that the Board, as fact finder, can). The Board finds that it is able to interpret the private examination graphical results in this case. The January 2010 private audiology examination report revealed right ear auditory threshold levels to 30 dB at 500 Hz, 35 dB at 1000 Hz, 40 dB at 2000 Hz, 35 dB at 3000 Hz, and 45 dB at 4000 Hz. Left ear auditory threshold levels were 30 dB at 500 Hz, 30 dB at 1000 Hz, 40 dB at 2000 Hz, 40 dB at 3000 Hz, and 40 dB at 4000 Hz. The Board finds that auditory threshold were 40 decibels in both the right and left ear at 2000 Hertz; therefore, this evidence shows current "disability" of hearing loss of both ears that meets the VA disability criteria of 38 C.F.R. § 3.385. Weighing against a finding of current hearing loss disability is a January 2011 VA audiological examination, which revealed pure tone thresholds in the right ear to 20 dB at 500 Hz, 25 dB at 1000 Hz, 30 dB at 2000 Hz, 35 dB at 3000 Hz, and 20 dB at 4000 Hz; and the Veteran's left ear auditory threshold levels were 25 dB at 500 Hz, 25 dB at 1000 Hz, 35 dB at 2000 Hz, 35 dB at 3000 Hz, and 25 dB at 4000 Hz. Strictly construed, the pure tone thresholds did not meet the criteria for a hearing loss "disability" under 38 C.F.R. § 3.385, lacking only one decibel in one Hertz range in each ear to be 26 dB. The Board interprets these results with consideration that there exist minor testing variabilities in audiometric testing. The Board also interprets that January 2011 VA audiometric examination results in the context of other audiometric testing one year prior that had already established hearing loss disability and specifically showed a 35 dB threshold at the 1000 Hertz level in the right ear and a 30 dB threshold at the 1000 Hertz level in the left ear. The January 2011 VA examiner diagnosed bilateral mild sensorineural hearing loss at 2000 and 3000 Hertz. The Board will resolve reasonable doubt in the Veteran's favor both on the narrow question of whether the audiometric thresholds at the 1000 Hertz level in both the right and left ear are 26 dB or higher to find that the hearing loss "disability" criteria under 38 C.F.R. § 3.385 are met. As the overall audiometric test results in January 2010 and January 2011 are in equipoise, the application of reasonable doubt also results in a finding that the hearing loss "disability" criteria under 38 C.F.R. § 3.385 are met. The VA examiner in January 2011 also noted that the Veteran wore ear protection after service while exposed to occupation and recreational noise. For these reasons, the Board finds that the evidence is in equipoise as to whether the Veteran has a current "disability" of hearing loss of both ears. As such, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a current bilateral hearing loss disability that meets the VA disability criteria of 38 C.F.R. § 3.385. Based on this evidence, the Board finds the Veteran was exposed to acoustic trauma while in service, symptoms of hearing loss were shown to be chronic in service, the Veteran has a current disability of bilateral hearing loss for VA purposes that accounts for the same in-service chronic symptoms of hearing loss, and the current hearing loss disability is not clearly shown as attributable to intercurrent causes. Such evidence shows chronic symptoms of hearing loss in service, and a currently diagnosed bilateral hearing loss disability that meets VA standards at 38 C.F.R. § 3.385. As there is no evidence the current hearing loss disability is clearly attributable to intercurrent causes, such subsequent manifestations of the same chronic hearing loss now are to be service connected. See 38 C.F.R. § 3.303(b). For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for presumptive service connection for hearing loss under 38 C.F.R. § 3.303(b) are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). ORDER Service connection for an upper respiratory disorder is dismissed. Service connection for bilateral hearing loss is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs