Citation Nr: 1512033 Decision Date: 03/20/15 Archive Date: 04/01/15 DOCKET NO. 09-07 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a right ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active military service from September 1967 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a bilateral hearing loss disability. During the course of the appeal, service connection for a left ear hearing loss disability was established by means of a March 2013 RO decision, thus granting that portion of the appeal in full. The issue of entitlement to service connection for a right ear hearing loss disability remains before the Board. The Board has reviewed the Veteran's electronic records (Virtual VA and VBMS) prior to rendering a decision in this case. FINDING OF FACT Resolving all doubt in his favor, the Veteran has a current diagnosis of a right ear hearing loss disability which is related to in-service noise exposure. CONCLUSION OF LAW The criteria for the establishment of service connection for a right ear hearing loss disability are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In light of the fully favorable determination in regard to the claim decided below, no discussion of compliance with VA's duty to notify and assist is necessary. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a) -benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2014). 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 (2014). When 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. See Hensley, supra. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the Board first determines whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As to credibility, VA adjudicators may consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet.App. 498 (1995); Madden v. Brown, 125 F. 3d 1447 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he has a right ear hearing loss disability as a result of his active military service. In particular, the Veteran contends that his current right ear hearing loss is linked to his in-service noise exposure while working as a jet aircraft mechanic. VA audiology examination conducted in June 2008 shows a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In addition, the Veteran's DD Form 214 indicates that his military occupational specialty was jet aircraft mechanic, and he has stated on multiple occasions that he was exposed to noise during service while working around fighter planes and other aircraft on the flight line. The Veteran's lay statements regarding exposure to loud noise from jet engines are credible and, therefore, acoustic trauma is presumed. The Veteran also underwent audiological examination on multiple occasions while on active duty, including at his entrance and separation medical examinations. At his November 1966 entrance examination, audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -10 (0) -5 (5) 0 (5) (NOTE: Prior to November 1967, and in some instances thereafter, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The Veteran again underwent audiological evaluation in November 1967, which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) 0 (10) -5 (0) Later audiological examination conducted in November 1969 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 Audiological examination conducted in November 1970 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 The Veteran underwent examination pursuant to his August 1971 separation. At that time, his ears were noted to be normal, and audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 The Veteran was provided VA examination in June 2008. The Veteran reported having been exposed to noise in service from working as a jet aircraft mechanic on the flight line and of having experienced loss of hearing acuity since that time. The Veteran also reported that he had had some post-service noise exposure both occupationally, while serving as a heavy equipment operator and as a police officer, and recreationally, from hunting. Audiological examination revealed hearing loss for VA purposes, based on audiological testing. The examiner opined that the Veteran's hearing loss was less likely than not related to any in-service noise exposure. The examiner noted the Veteran's normal hearing at his separation from service and pointed out that acoustic trauma normally causes damage to hearing at the time of the exposure. She further noted that post-service noise exposure and the Veteran's advancing age were likely contributing factors in his development of hearing loss. In a December 2012 opinion, a private physician noted the findings of the June 2008 VA examiner but opined that, based on those findings, it is at least as likely as not that the Veteran's current hearing loss is etiologically linked to his in-service exposure to acoustic trauma. The physician noted that hearing loss due to repeated acoustic trauma may take several years to manifest. She also pointed out that the Veteran has been awarded service connection for tinnitus due to in-service noise exposure and noted that tinnitus and hearing loss often share an etiology, thus rendering it likely that the Veteran's hearing loss is of common origin with his service-connected tinnitus. The Veteran underwent another VA audiological examination in February 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 50 60 65 The speech discrimination score was 78 percent for the right ear. After reviewing the claims file, the examiner wrote that the Veteran's right ear hearing sensitivity remained stable throughout his military service, and as such, the current right ear hearing loss was not as likely as not due to military service. In October 2014, the Veteran saw a private audiologist. The Veteran recounted his exposure to jet aircraft while serving as a mechanic while on active duty. The audiologist reviewed some of the Veteran's military records. The Veteran also reported having worked post-service as a heavy equipment operator and a police operator. The examination report includes an uninterpreted graphic audiogram, and the examiner said that the Veteran had a moderate to severe sensorineural hearing loss bilaterally. The word recognition score was 88 percent for the right ear. The examiner opined that it was quite likely that the noise exposure the Veteran suffered during his military service was the beginning of his hearing loss. He indicated that the type and degree of the Veteran's hearing level was consistent with noise induced hearing loss. In evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Likewise, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, two VA examiners have given negative nexus opinions, and two private examiners have associated the Veteran's right ear hearing loss with his in-service noise exposure. All four examiners appear to have had access to and reviewed the Veteran's service records, and all discussed the Veteran's military and post-service history. The medical opinions of record appear to be in equipoise. As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his right ears, and the Board finds that his assertions are credible. Specifically, the Veteran is competent to report symptoms such as decreased hearing acuity continuously since service. The Board has no reason to doubt the Veteran's assertions. After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current right ear hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma as a jet engine mechanic. Thus, the medical and lay evidence for the claims and the evidence against the claims are at least in equipoise. Accordingly, the benefit-of-the-doubt rule applies and service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a right ear hearing loss disability is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs