Citation Nr: 1418656 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 12-02 387 ) 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 WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In June 2012, the Veteran testified in a Videoconference Board hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his files on the "Virtual VA" system and the VBMS system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. The Veteran has a current bilateral hearing loss disability for VA compensation purposes. 3. The Veteran's current bilateral hearing loss was incurred in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim for service connection for bilateral hearing loss has been considered with respect to VA's duties to notify and assist. Given the favorable outcome adjudicated herein, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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 initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, sensorineural hearing loss (as an organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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 a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). The Court has held that a veteran may establish the required nexus between his current hearing loss disability and his term of military service if he can show that the hearing loss disability resulted from acoustic trauma. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Hearing loss (also referred to as hearing "impairment") will be considered a disability for VA disability compensation purposes 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 3 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. In evaluating claims of service connection for hearing loss, the threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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 In this case, the Veteran is seeking service connection for bilateral hearing loss. The Veteran asserts that, as a radio operator, he was routinely exposed to hazardous noise in service. Specifically, he contends that he currently experiences from bilateral hearing loss as a result of noise exposure from radio signals and communications, and jet engine noise while in service. The Board first finds that the Veteran sustained acoustic trauma in service. As a radio operator, the Veteran was routinely exposed to loud noises of radio signals using radio communications equipment during service. Indeed, the Veteran's Form DD 214 indicates that his military occupational specialty is equivalent to a radio operator, which he was assigned for the duration of his active service. Accordingly, noise exposure is conceded. See 38 U.S.C.A. § 1154(a). Post-service evidence reflects a current bilateral hearing loss for VA purposes which was first diagnosed in September 2009. Therefore, a current hearing disability shown. 38 C.F.R. § 3.385. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current bilateral hearing loss disability began in service or is otherwise related to the in-service loud noise exposure. The Veteran has credibly testified that he experienced the onset of hearing loss during service. At the June 2012 Board Videoconference hearing, the Veteran testified that in service, following exposure repeated radio signals, he first experienced a lack of hearing. Hearing Transcript at 5. At the Veteran's February 1964 enlistment examination audiometric testing (converted to ISO units) showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 10 LEFT 25 0 5 0 15 At the Veteran's separation physical in October 1967 audiometric testing (converted to ISO units) showed the following, with pure tone thresholds recorded in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 15 10 LEFT 25 20 15 15 10 These results reveal slight numerical shift increases across nearly all of the measured frequencies from pre-induction examination in February 1964 to service separation examination in October 1967, suggesting a slight worsening of hearing acuity, albeit generally remaining within the normal range, from pre-induction to separation. On the question of nexus to service, the April 2010 VA examiner opined that the hearing loss is not caused by or a result of military noise exposure. The VA examiner relied on the factual assumption that the Veteran had hearing within normal limits at both enlistment and separation. She did not, however, discuss or mention the decrease in hearing acuity from enlistment to discharge. The Board finds the April 2010 VA examiner's opinion to be legally inadequate in its reliance on the entrance and separation audiometric examinations and findings that showed normal hearing at service enlistment and separation as a basis for the opinion. A claimant may establish entitlement to service connection for hearing loss even if there is no showing of hearing loss in service or for years thereafter, so long as evidence demonstrates a medical relationship between the in-service noise exposure and the current disability. Hensley, 5 Vet. App. at 160. There is no other adequate medical nexus opinion that addresses the etiology of the Veteran's bilateral hearing loss; as such, the Board must look to the remaining evidence of record to determine whether service connection is warranted. 38 C.F.R. § 3.303(d) (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). In this case, while the Veteran was first diagnosed with bilateral hearing loss years after discharge from service, his credible testimony establishes the onset of hearing loss during service. The Veteran's hearing loss disability (identified as sensorineural hearing loss) is of the type and configuration that is consistent with in-service noise exposure given the Veteran's history. Sensorineural hearing loss is defined as "that due to a lesion in either the cochlea (sensory mechanism of the ear), the vestibulocochlear nerve, the central neural pathways, or a combination of these structures. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 836 (31st Ed. 2007); see also 38 C.F.R. § 20.903(b)(2)(notice to the appellant is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board's disposition of the appeal). This diagnosis coupled with the evidence pertinent to service, specifically, the Veteran's competent and credible statements indicating in-service acoustic trauma, the onset of symptoms of hearing loss in service following the loud noise exposures, and symptoms of hearing loss after service, are evidence supportive of the Veteran's claim. The Veteran has consistently stated that his hearing difficulties began in service. While the October 1967 service separation examination reflected normal hearing thresholds (with the exception of 25 decibels at 500 Hz in the left ear), it also indicted a slight worsening of hearing acuity from pre-induction to separation. On the question of onset of hearing loss symptoms, the Veteran's daughter provided a statement in indicating that, from her earliest memories, the Veteran had hearing problems, which would result in having to repeat what was said to the Veteran, and turning the TV on too loud. She also stated that she recalled hearing various family members telling stories about the Veteran returning from service and playing the TV loud so that he could hear it. Another lay statement from the Veteran's spouse (who began dating the Veteran in 1970, approximately two years after service discharge) reveals that for their entire, 41-year relationship, the Veteran has had a hearing deficit. Significantly, in a January 2012 submission, the Veteran's sister (who is 18 months younger than the Veteran) also stated that the Veteran had hearing difficulty since returning from active service. While the record does not reflect that the Veteran's bilateral hearing loss manifested to a compensable degree within a year after discharge from service or for years after separation, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. See 38 C.F.R. § 3.303(d). In this case, consideration of the totality of the evidence of record establishes that the Veteran's bilateral hearing loss was incurred in service, that is, that the hearing loss had its onset in service even though such was not diagnosed until years later. Id. The evidence shows acoustic trauma and also reflects diagnosis of sensorineural hearing loss, which is consistent with sensorineural (nerve) damage. In this case, the only potential cause of nerve damage identified was the in-service event and injury of trauma. The nature of the diagnosis of sensorineural hearing loss recognizes the nerve involvement. There is no adequate competent medical opinion to weigh against the claims, despite the fact that an attempt was made to obtain an opinion on the questions of nexus to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for bilateral hearing loss, as incurred in service, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs