Citation Nr: 1506064 Decision Date: 02/10/15 Archive Date: 02/18/15 DOCKET NO. 13-07 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In June 2013, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran was exposed to loud noise during service, including from artillery fire and engine noise. 2. The weight of the medical evidence shows that the Veteran's bilateral hearing loss is etiologically related to noise exposure in service. CONCLUSION OF LAW With the resolution of reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for bilateral hearing loss, which represents a complete grant of the benefit sought. As such, no discussion of VA's duties to notify and assist is necessary. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). With respect to service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran reported that he was exposed to loud noise during service, including gunfire and artillery fire at the shooting range, and loud engine noise from planes and trucks, and that he was not provided hearing protection in service. See, e.g., November 2010 VA audiologic examination report; June 2013 Board hearing transcript. The Veteran testified at his Board hearing that he began experiencing hearing difficulties towards the end of his active service. He also testified that within a year of separation from service he reported his hearing loss symptoms to his primary care physician, who informed the Veteran that he had slight hearing loss. These treatment records are unavailable for review; however, the Veteran is competent to report what his doctor told him, and the Board has no reason to doubt the credibility of this testimony. In November 2010, the Veteran was provided a VA-contracted audiometric examination. The examiner noted the Veteran's reports of in-service noise exposure, as well as a lack of post-service occupational noise exposure, since the Veteran worked as a florist. The examiner noted post-service recreational noise exposure from power boating and motorcycles. Audiometric testing conducted at that time revealed puretone thresholds in decibels as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 30 40 40 30 60 100 LEFT 35 25 45 35 65 100 These audiometric findings demonstrate a bilateral hearing loss disability as defined by VA regulation, and the examiner diagnosed bilateral sensorineural hearing loss. While she opined that the Veteran's hearing loss was not related to service, her only explanation was an unclear statement that "previous audiological evaluations do not show typical gradual worsening of hearing thresholds," and a reference to the Veteran's post-service recreational noise exposure. In a June 2011 letter, the Veteran's primary care physician opined that the Veteran's hearing loss was most likely related to service, and reasoned that the Veteran had not been exposed to loud noises since leaving military service, and had been working as a florist. In a July 2012 letter, a private audiologist considered the Veteran's reported history of noise exposure from heavy artillery fire, transport trucks, and loud engines without hearing protection, and opined that the Veteran's current hearing loss was more likely than not caused by military noise exposure. An August 2012 VA treatment note contained a VA physician's opinion that the Veteran's hearing loss was related to service, based upon his reported history of high decibel noise exposure while serving in the military. Also in August 2012, the Veteran's primary care physician submitted a letter stating that he had been treating the Veteran for over 20 years, and that as long as he had known the Veteran, the Veteran had experienced issues with hearing loss. The physician opined that the Veteran's hearing loss was not related to his civilian life or work as a florist. The Veteran was provided a VA audiologic examination in January 2013. In this examination report, the examiner addressed the issue of service connection for tinnitus, which the Board notes is no longer on appeal as it has since been granted by the RO. The examiner opined that the Veteran's tinnitus was related to service due to the Veteran's high frequency hearing loss and his history of military noise exposure from artillery fire, truck noise, and gunfire. While the examiner then opined that the Veteran's hearing loss was not related to service, her sole rationale consisted of a single sentence stating that the Veteran was evaluated as having normal hearing at entrance and separation from service. In a June 2013 statement, the Veteran's primary care physician reiterated that the Veteran had hearing loss related to military service. The Veteran has consistently asserted that he began experiencing hearing loss in service when he was exposed to loud noises at the firing range and from plane and truck engines, that he first sought treatment for hearing loss from a private doctor within a year of separation from service, and that his hearing continually worsened since that time. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, based upon the evidence available, the Board presumes the occurrence of the Veteran's in-service acoustic trauma. The Board also notes that the RO granted service connection for tinnitus in January 2013 on this basis. While two examiners have declined to relate the Veteran's bilateral hearing loss to noise exposure in service, neither opinion provided an adequate explanation to justify its conclusion. The November 2010 examiner's minimal rationale was confusing on its face, and the January 2013 examiner's opinion rested solely on normal hearing shown at separation from service, which the Court has specifically found to be an inadequate rationale in hearing loss claims. Moreover, the January 2013 VA examiner's opinion regarding hearing loss appeared to contradict her simultaneously positive opinion regarding tinnitus. Meanwhile, the Veteran has submitted four different medical opinions that each relate his hearing loss to military service. While not all of these opinions provide a substantial explanation, the Board finds that the letter from the Veteran's primary care physician is highly probative, as he stated that he had been treating the Veteran for over 20 years and during that entire period the Veteran had complained of hearing loss. Moreover, the Board finds that the primary care physician's determination as to a lack of post-service noise exposure is more persuasive than the November 2010 VA examiner's determination regarding this issue. Particularly compelling in this case is the undisputed fact, acknowledged by both private and VA audiologists alike, that the Veteran worked as a florist ever since service, and had no noise exposure from that occupation. In short, the Veteran's testimony combined with three private medical opinions and one VA medical opinion that all relate bilateral hearing loss to military service sufficiently rivals two negative VA opinions. As such, the benefit of the doubt doctrine is applicable, and service connection for bilateral hearing loss is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs