Citation Nr: 1410168	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-30 684	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from June 1973 to June 1975.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned acting Veterans Law Judge at a Travel Board hearing at the above VARO in October 2011; a transcript is of record.

The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

Bilateral hearing loss is etiologically related to service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board grants service connection for bilateral hearing loss.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, i.e. bilateral hearing loss, if manifest to a compensable degree within one year after discharge from service.  See 38 C.F.R. §§ 3.307, 3.309 (2013).

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, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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 (2013).  Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss during service is not fatal to his claim for service connection.  The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service . . . ."  Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)).  Therefore, the critical question is whether the Veteran has current hearing loss disability which is causally related to service.

The Veteran's DD Form 2014 states that his military occupation was in field artillery, and he testified at the October 2011 Board hearing that he was a cannoneer and was exposed to artillery fire 30 to 40 times a day.  The Board therefore finds that he was exposed to acoustic trauma during service.

At the Veteran's entrance examination in June 1973, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
n/a
10
LEFT
25
25
15
n/a
15

The Veteran's hearing was tested again in December 1973 when he was issued earplugs.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
35
35
25
LEFT
25
25
30
30
35

The service treatment records further show that in May 1974 the Veteran complained of hearing loss for two months in the right ear.  Irrigation of cerumen was needed.

A June 1975 audiogram showed pure tone thresholds, in decibels, as follows:







HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
20
20
15
LEFT
40
30
30
30
25

The Veteran had a VA examination in January 2010.  He reported noise exposure during military service without hearing protection and noise exposure from welding equipment in his post-service occupation with the use of hearing protection.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
40
40
30
30
LEFT
30
40
35
35
45

Speech audiometry revealed speech recognition ability of 100 percent bilaterally.

The Veteran was diagnosed with bilateral mixed hearing loss.  The examiner felt that the hearing loss in the left ear from 1975 was consistent with middle ear pathology.  An opinion on etiology could not be given because there was not medical intervention at the time of separation from service.  The examiner opined that the right ear hearing loss was less likely as not related to military service because hearing was within normal limits throughout military service.  Probative value cannot be given to the examiner's opinion because the December 1973 audio testing from service showed right ear hearing loss.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinion based upon inaccurate factual premise has no probative value).

The Veteran had a private audiogram in October 2011 and was diagnosed with mild to moderate mixed hearing loss in the left ear and mild to severe sensorineural hearing loss in the right ear.  The audiologist opined that the high frequency hearing loss in the left ear and possibly the mid-frequency sensorineural component in the right ear was most likely exacerbated by military service.

Where some upward shifting of hearing thresholds occurred during service, and/or where no disability is shown until years after service, VA must still consider whether the current hearing loss disability is due to service noise, or is more properly attributable to intercurrent cause.  Hensley, supra.  In this case, the private audiologist opined in October 2011 that the left ear hearing loss was most likely exacerbated by military service and that the right ear hearing loss that it was possible that the right ear hearing loss was exacerbated by military service.  Applying the benefit of the doubt doctrine, where all reasonable doubt is resolved in favor of the Veteran when the evidence is in relative equipoise, the Veteran's claim for service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2013).


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
JOHN H. NILON
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs