Citation Nr: 1341632 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 10-37 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in January 2013 for additional development. FINDING OF FACT The Veteran has bilateral hearing loss that is likely as not related to his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, he has bilateral hearing loss that was incurred in his military service. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain diseases, to include organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection. See 38 C.F.R. § 3.385. "[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." The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5, Vet. App. 155, 160 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran is seeking entitlement to service connection for bilateral hearing loss. Specifically, the Veteran asserted that his "normal duties" in the military, including being a squadron armorer around weapons, being a fill-in door gunner, and being around helicopters, required him to be around noise without hearing protection. A review of the Veteran's service treatment records (STRs) does not reveal the presence of a hearing loss disability. These records include his October 1965 pre-induction hearing evaluation. The Board notes that service department audiometric readings prior to October 31, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. As this evaluation was conducted prior to October 1967, the Board has converted the ASA units to ISO units (in parentheses) as shown below. The Veteran had puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT -5 (5) -5 (5) -- -5 (0) LEFT 0 (10) 0 (10) -- 5 (10) At his September 1968 separation examination, the Veteran had puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 0 0 -- 0 LEFT 0 0 -- 5 On March 2009 VA audiology consult, the Veteran reported gradual decreased hearing for 10+ years. He reported working around high noise levels during active military duty without hearing protection. He stated that in his civilian career, he worked primarily in non-noise induced environments and that while doing recreational activities, such as yard work, he wore hearing protection. An audiological evaluation revealed bilateral mild to moderately severe sensorineural hearing loss. In February and November 2009, the Veteran submitted statements from a private ear, nose, and throat physician who indicated that the Veteran had "substantial noise exposure while serving in the military." This physician stated that the Veteran has a moderate sensorineural hearing loss that is worse in the higher frequencies. He stated that such hearing loss is "greater than would be expected for his age and general health." He concluded that the Veteran's "high frequently hearing loss is clearly a result of his noise exposure (acoustic trauma) while serving in the military." He further stated that "hearing loss typically develops years after the acoustic trauma." The Veteran was afforded a VA examination in July 2010. The examiner noted that the Veteran was a gunner with a helicopter unit and was exposed to multiple types of caliber weapons while flying in Vietnam, and that he was in active combat for 12 months in Vietnam. He noted that the Veteran reported not being issued any hearing protection devices. Normal to moderately severe bilateral sensorineural hearing loss was diagnosed. The examiner opined that because the Veteran's hearing on entrance and separation was normal and because the Veteran reported having hearing loss only for the past 20-25 years, such hearing loss is less likely as not related to or caused by noise exposure while on active duty. In an August 2010 rating decision, the RO conceded military noise exposure and granted the Veteran service connection for tinnitus. In December 2010, the Veteran was evaluated by a private audiologist, who concluded that, "Based on audiometric results and [the] patient's previous exposure to excessive noise while in the military it is a possibility that the patient's hearing loss at least in part could be due to exposure to noise while in the military." On February 2013 VA examination, bilateral sensorineural hearing loss was diagnosed. The examiner opined that such was less likely than not caused by or a result of an event in military service. The examiner stated that the Veteran's hearing on entrance and separation was within normal limits at all tested frequencies. Regarding the February 2009 statement from a private ear, nose, and throat physician attributing the Veteran's hearing loss to acoustic trauma in service, the examiner explained that such statement was made without the benefit of direct information from the Veteran's military medical record and is contrary to the current position of the Institute of Medicine (finding that delayed onset of noise-induced hearing loss is not supported by medical research). The examiner further stated that while contributions from aging, diet, disease, medication, and work or recreation related noise exposure cannot be ignored, the normal results of the audiogram on separation make it less likely that military noise contributed to the Veteran's current hearing loss. The Veteran has also submitted multiple lay statements, including from fellow service-members and family members, attesting to his current hearing loss as due to acoustic trauma in service. Notably, in March 2013, his wife stated that the Veteran was frequently around firing weapons and helicopters and was not provided hearing protection in service. She additionally stated that postservice, her husband wears hearing protection any time he is around loud noises, including all yard work. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is warranted. Initially, the Board finds that the Veteran did incur in-service acoustic trauma (such was conceded by the RO in August 2010). Furthermore, the evidence shows that the Veteran has a current bilateral hearing loss disability as defined by VA. The Board also finds that the evidence is in equipoise with respect to a nexus between his in-service acoustic trauma and his current bilateral hearing loss disability. As noted above, service connection for tinnitus as due to in-service acoustic trauma has been granted. The Board observes that "an associated hearing loss is usually present" with tinnitus. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Programs. Concerning this, the Board notes that tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. Id. In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The MERCK Manual, Sec. 7, Ch. 85, Inner Ear. A nexus between current hearing loss and service is also supported by the February and November 2009 opinions from a private ear, noise, and throat physician. The Board finds particularly persuasive the fact that the February and November 2009 physician explained the basis for his opinion: that the Veteran's hearing loss is in a configuration consistent with noise exposure in service, and is not consistent with other factors, such as age and general health. This opinion was made after an evaluation of the Veteran and included citation to clinical data (the configuration of the hearing loss). The Board acknowledges the negative evidence of record, including the July 2010 and February 2013 VA examiners' opinions. However, the Board finds that such lack probative value as they violate Hensley. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley at 160. The examiners' negative nexus opinions regarding the Veteran's hearing loss were premised upon the absence of bilateral hearing loss being shown at discharge and thus, they lack probative value. The Board notes that even though the Veteran's audiometry at separation found his hearing to be normal, such is not fatal to his claim of service connection, as he can establish service connection by affirmative evidence of a nexus between his current hearing loss and service. Here, we have such evidence in the February and November 2009 probative opinions and in the above-noted provisions from The MERCK Manual. Thus, in considering the above evidence and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has bilateral hearing loss that was incurred in service. All of the requirements for establishing service connection are met. Service connection for bilateral hearing loss disability is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs