Citation Nr: 1340969	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  10-32 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a left ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1986 to November 2008.  He is a recipient of the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied service connection for a hearing loss disability for both right and left ears.  Subsequently, the RO granted service connection for a right ear hearing loss disability by way of a July 2011 rating decision.  

Virtual VA and Veterans Benefits Management System (VBMS) were reviewed.


FINDINGS OF FACT

1. Left ear hearing loss disability was noted at entry into service.

2. Pre-existing left ear hearing loss disability increased in severity during service due to acoustic trauma.  


CONCLUSION OF LAW

Pre-existing left ear hearing loss disability was aggravated by service.  38 U.S.C.A. §§ 1110, 1111, 1113, 1153, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

To the extent that the action taken hereinbelow is favorable to the Veteran, a discussion of compliance with VA's duty to notify and assist is not required at this time.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

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, 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 threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  

Additional laws and regulations apply, however, when there is evidence that a disability pre-existed service.  Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  In this case, the June 1985 entrance examination report reflects audiogram findings showing puretone thresholds of 50 decibels in the 3000 Hertz category.  See infra.  As a left ear hearing loss disability was noted at entry into service, the presumption of soundness is inapplicable, and the only issue is whether pre-existing left ear hearing loss disability was aggravated by service.

A pre-existing disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  Id.  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A.§ 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his left ear hearing loss disability was aggravated by noise exposure during service, to include such exposure during combat operations.  

In regard to in-service acoustic trauma, the Veteran indicated in written statements and during examination that he was exposed to noise due to combat conditions in Iraq, to include explosions, vehicle noise, and artillery.  The Veteran's DD-214 shows that he is in receipt of the Combat Action Ribbon, as well as his activation in support of multiple operations in Iraq.  The Board accordingly finds that the provisions of 38 U.S.C.A. § 1154(b) are for application in this case, and the Veteran's statements regarding acoustic trauma from weapon and vehicle noise are credible, competent, and consistent with the circumstances of his combat service and acoustic trauma in service has been conceded.  Similarly, his report of a decrease in acuity is consistent.  

At the outset, the Board notes that the Veteran has a current left ear hearing loss disability pursuant to VA standards as demonstrated by audiological findings made at the November 2011 VA examination.  Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
6000
8000
LEFT
5
0
15
55
55
40
10

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  The diagnosis was sensorineural hearing loss, also noted at the higher frequencies.  

As previously mentioned, the Veteran was noted to have left ear hearing loss disability pursuant to VA standards on his entrance examination in June 1985.  Pure tone thresholds, in decibels, were as follows:

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
0
5
50
40
40

As the Veteran's hearing acuity was measured at 50 decibels for the 3000 Hertz category (and 40 decibels in the higher categories), he has a left ear hearing loss disability noted upon entry into service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  Service connection can be established if evidence shows that it is actually due to incidents during service, particularly where the evidence demonstrates a threshold shift during service.  Hensley, 5 Vet. App. at 159-60 (emphasis added).  Here, an upward threshold shift in hearing acuity during service would demonstrate an increase in severity for purposes of service connection.

In this case, in-service audiograms, despite frequent inconsistencies, show a upward threshold shift in hearing acuity (a decrease in acuity), as evident by the pattern of in-service audiograms set forth below.

A hearing conservation data form, DD Form 2216, compared audiometric results from June 1986 to audiometric findings made on three different occasions - once in February 1990 and twice in April 1990.  Results are as follows.

June 1986 results (annual testing) revealed:

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
10
50
50
25

The two April 1990 results were as follows.  The first one was conducted after 15 minimum hours of being noise free, the second one after at least 40 hours of being noise free.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
10
10
15
60
50
25

HERTZ
500
1000
2000
3000
4000
6000
LEFT
0
5
10
60
50
35

Significantly, we note the +10 decibel upward shift in the 3000 Hertz category when comparing the June 1985 (entrance) and June 1986 audiogram results to the April 1990 audiogram results.  There is also a +10 decibel upward shift when comparing the June 1985 (entrance) audiogram results to the one taken one year later in June 1986 for the 4000 Hertz category.  

An April 1990 service treatment note indicates that based on hearing conservation data, there was no noticed changed in hearing.  Audiogram inconsistencies particularly in the 3000 and 4000 Hertz categories were noted.  Additionally, service treatment records show that ear plugs were issued to the Veteran during service.  

In December 1991, the Veteran had the following audiogram results.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
10
60
45
40

Two audiograms were taken in January 1995 which revealed the following.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
10
5
15
60
45
40

HERTZ
500
1000
2000
3000
4000
6000
LEFT
0
5
10
55
50
45

There was a notation of high frequency hearing loss as a defect on the medical examination report.  A couple of other audiograms were administered on different days in January 1995 which reflect no significant change from the January 1995 audiogram results reported above.  

In July 2000, audiogram findings showed the following.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
15
60
55
45

This audiogram was directly compared to one of the January 1995 audiograms and a +5 decibel upward shift was detected in categories of 2000 Hertz through 4000 Hertz.  

October 2001 audiograms revealed the following.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
15
5
5
5
50
15
(We note that it appears from the wildly inconsistent results displayed here, the right and left ear must have been accidentally switched in reporting the results.)

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
10
50
55
35

A July 2003 audiogram showed the following.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
10
55
50
40

When compared to the January 1995 audiogram, the examiner remarked no change in thresholds.  It was noted that the Veteran was routinely noise exposed.  

Lastly, the July 2008 audiogram (for purposes of separation from service) revealed the following.

HERTZ
500
1000
2000
3000
4000
6000
LEFT
5
5
10
55
50
45

In comparing these results to those of the January 1995 audiogram findings, the examiner remarked no change in thresholds.  It was again noted that the Veteran was steadily exposed to noise.

In sum, what the above audiometric results establish is that during service, the Veteran has demonstrated that his pre-existing left ear hearing loss disability underwent an increase in severity, from the time of entrance into service.  Despite varying audiometric results, the Board particularly notes as significant the various findings of an upward shift in hearing acuity in the higher frequency thresholds (3000 to 6000 Hertz categories).  As an increase in severity for left ear hearing loss disability is found during service, a presumption of aggravation attaches.  Here, this presumption is not rebutted.  38 U.S.C.A. §§ 1113, 1153.

As previously stated, the Board accepts the Veteran's testimony that he suffered acoustic trauma in service.  The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred.  Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C.A. § 1154(b)).  This is also bolstered by the fact that routine noise exposure was documented on the audiogram reports.  The statute, moreover, specifically provides that the VA must "resolve every reasonable doubt in favor of the veteran" when determining whether a combat veteran incurred a particular injury or disability while in active service.  Id.  Thus, the Board finds that the upward shift in hearing acuity is due to the consistent level of noise exposure in service.  38 U.S.C.A. § 11545(b).

The Board finds that the lay and medical evidence in this case collectively weighs in favor of the Veteran's claim for aggravation of his left ear hearing loss disability.  Specifically, though some audiometric inconsistencies in service are noted, the pattern of the in-service audiograms results for the left ear document that the Veteran's hearing underwent an increase in severity during service due to his routine noise exposure which are consistent with the circumstances of his service.  See 38 U.S.C.A. §§ 1153, 1154(b); 38 C.F.R. § 3.306.  As such, the Board finds that service connection for left ear hearing loss disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for a left ear hearing loss disability is granted.



____________________________________________
H. N. SCHWARTZ 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs