Citation Nr: 1421982 Decision Date: 05/15/14 Archive Date: 05/29/14 DOCKET NO. 08-38 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the Board at a travel board hearing in June 2010. A transcript of this hearing has been associated with the claims file. The Board remanded these claims for additional development in December 2010 and March 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain files, including VA treatment records, are relevant to the issues on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. FINDING OF FACT The evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss is related to acoustic trauma in active service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Given the Board's favorable disposition to grant the claim for service connection for bilateral hearing loss, the Board finds that no discussion of VCAA compliance is necessary at this time. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 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 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts service connection for bilateral hearing loss on the basis that he developed the condition due to in-service, combat-related acoustic trauma. He has also alleged that he has continuously experienced bilateral hearing loss since discharge from service. The Veteran's service personnel records indicate that while serving on active duty, his military occupational specialty (MOS) was that of an armor crewman, and during his June 2010 hearing, he testified that he worked as a tank driver and commander. He reported being exposed to loud guns, including a main gun on the tank, small arms, bombs, and other "loud noises all the time from combat." Additionally, he was awarded the Combat Infantryman Badge, which is indicative of combat. The Board notes that noise exposure is consistent with the duties and circumstances of working as an armor crewman and experiencing combat. As such, the Board concedes the occurrence of the in-service acoustic trauma. The Veteran's service treatment records show that at his pre-induction examination in May 1968, the Veteran had slight high frequency hearing loss. The audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 -- 25 LEFT 15 5 5 -- 15 Though not recorded on the physical form, an audiometric test data sheet indicates that the Veteran had severe hearing loss at 6000 Hz in his left ear; the right was not tested at 6000 Hz. Finally, per a March 1971 medical report revealed, the Veteran was qualified for separation without reexamination. On VA audiology examination in June 2007, the examiner noted that the Veteran's hearing was within normal limits to 2000 Hz with a steep drop to a moderate-to-severe loss at 3000 Hz to 8000 Hz. The Veteran explained that he had difficulty understanding speech while in the presence of background noise. He relayed his history of noise exposure, including the combat noise exposure. The Veteran also discussed his post-service occupational noise exposure that included working thirty years around air tools and motors in automotive repair. He denied recreational hearing loss. The audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 50 95 LEFT 15 15 25 75 90 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with bilateral normal to profound sensorineural hearing loss. The examiner opined that the Veteran's hearing loss is not caused by or a result of his military noise exposure. The examiner's rationale rested on the fact that the Veteran had shown some hearing loss on his induction examination. The examiner also stated that there was insufficient scientific basis for the existence of delayed onset hearing loss. An undated post-service private treatment record, which was associated with the claims file in June 2008 and January 2011, shows audiometric testing that revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 55 90 LEFT 10 10 10 70 90 Again in May 2011, the Veteran was provided a VA audiological examination to evaluate the etiology of his bilateral hearing loss. The examiner noted the Veteran's in-service and post-service noise exposure and reviewed the record. The audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 60 100 LEFT 20 15 30 80 100 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The examiner stated, however, that she could not resolve the issue as to the etiology of the Veteran's hearing loss without resorting to mere speculation. In her rationale, she stated that because the Veteran had hearing loss at induction, there was no separation audiogram, and there was significant post-military noise exposure, she could not resolve how much hearing loss was due to in-service acoustic trauma and how much was due to post-service acoustic trauma without speculating. Finally, as directed by the March 2012 Board remand, the Veteran was afforded another VA examination, in March 2012, for his claim for service connection for bilateral hearing loss. Again, the examiner reviewed the claims file and the Veteran's complaints. The audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 65 95 LEFT 5 15 20 75 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. The examiner assigned a diagnosis of bilateral sensorineural hearing loss. However, he stated that he could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. In his rationale, the examiner discussed the Veteran's history of in-service and post-service noise exposure. He also discussed the Veteran's wife's statements regarding the Veteran's hearing loss upon his return from Vietnam. However, the examiner explained that "[w]ithout hearing test results from after the blast which the Veteran reports...I cannot provide an opinion as to the locus" of the Veteran's current hearing loss or as to whether the Veteran's hearing loss, which was noted on his entrance examination, was aggravated by military exposure alone. He went on to opine that the Veteran's noise exposures before and after military service "at least contributed to his current hearing loss" but indicated that he could not determine what "amount contributed by each type of noise exposure." The Board also notes that throughout the pendency of his appeal, the Veteran has consistently reported experiencing symptoms of bilateral hearing loss since service. Indeed in his April 2008 Notice of Disagreement, the Veteran asserted that the military acoustic trauma made his hearing worse. Again, in a statement submitted in June 2010, the Veteran recounted an event when he drove "through a water hole" and got stuck; he reported that he and his fellow servicemen eventually used a "C-4" under the tank to "break the suction." The Veteran recounted that he stepped on the "throttle" and then the bomb exploded. He stated that his "ears were never the same again." An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In rendering the assessment that the Veteran's bilateral hearing loss was not due to in-service noise exposure based on the available evidence, the June 2007 examiner provided a negative opinion based only on the existence of the Veteran's pre-service mild, high frequency hearing loss and because there was insufficient scientific basis for the existence of delayed onset hearing loss. However, the only audiometric information available provides that the Veteran did not have a bilateral hearing loss disability for VA purposes upon entrance to service. See 38 C.F.R. § 3.385. Additionally, the June 2007 VA examiner did not take the Veteran's or his wife's lay statements into account regarding continuity of symptomatology of bilateral hearing loss, which further diminishes the probative value of the opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the Veteran has been diagnosed with bilateral sensorineural hearing loss (organic disease of the nervous system), a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) (2012), service connection based on a theory of continuity of symptomatology can be warranted under 38 C.F.R. § 3.303(b) (2012) for his bilateral hearing loss. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran is competent to report the onset and chronicity of symptomatology of his bilateral hearing loss, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), and the Board finds that his statements in this regard, as well as the statements from his wife, are credible. The Board also notes that the Veteran's and his wife's statements as to the onset of his bilateral hearing loss are consistent with his acoustic trauma during service, which the Board has already conceded. Additionally, the Board finds that, the mild high frequency hearing loss that was shown on his entrance examination did not meet the criteria under 38 C.F.R. § 3.385 for bilateral hearing loss prior to entering service. Finally, the Board notes that both the May 2011 and March 2012 examiners indicated that they could not opine as to the etiology of the Veteran's bilateral hearing loss due to the other potential contributing factors to the Veteran's hearing loss, including mild hearing loss at entrance and post-service noise exposure. However, given the Board's finding that the Veteran has provided competent and credible lay testimony concerning the continuity of his symptomatology, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise regarding the issue of whether the Veteran's bilateral hearing loss was related to acoustic trauma during his period of active service. Where the evidence supports the claim or is in relative equipoise, the appellant prevails. Thus, the criteria for service connection for bilateral hearing loss have been met. Reasonable doubt is resolved in favor of the Veteran, and the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs