Citation Nr: 1522931 Decision Date: 06/01/15 Archive Date: 06/16/15 DOCKET NO. 12-16 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from May 1957 to November 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran served as an air traffic control operator in service and was exposed to noise during that time. 2. The Veteran has a current hearing loss "disability" as defined by VA regulation under section 3.385. 3. Some degree of hearing loss, albeit not to a disabling degree as defined by VA under section 3.385, was shown in service at some frequencies on 1958 and 1959 audiometric tests. 4. The evidence is in relative equipoise as to whether the Veteran's current hearing loss disability either had its onset in service or is the result of noise exposure in service as opposed to its being the result of some other cause or factor. CONCLUSION OF LAW Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2014). Service connection may also 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. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the evidence clearly shows that the Veteran has a current hearing loss disability for VA purposes under 38 C.F.R. § 3.385 as his July 2011 VA examination shows that at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater. Service treatment records show that, on the February 1957 enlistment examination, the examiner noted, "audiogram attached." However, no audiogram is attached to this examination report and none is otherwise included with the service treatment records. Accordingly, the Veteran is presumed to have been sound as to his hearing acuity at the time of enlistment. As noted above, the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley, 5 Vet. App. at 157. In this case, when the results of audiometric testing shown on a June 1958 annual examination are converted from American Standards Association (ASA) units to International Standards Organization (ISO)-American National Standards Institute (ANSI) units, some hearing loss is shown as indicated by the units underlined below: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 10 (20) 15 (25) NA 25 (30) LEFT 15 (30) 10 (20) 5 (15) NA 15 (20) (NOTE: Before November 1, 1967, audiometric results were reported by the military in standards set forth by the American Standards Association (ASA). (VA used ASA standards on or before June 30, 1966.) Those are the figures on the left of each column and are not in parentheses. Since the mid-1960s, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI) and have been used by the military, for the most part, unless otherwise noted. (VA has used ISO-ANSI standards, unless otherwise noted, since July 1, 1966.) In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) On an April 1959 annual examination, audiometric results were noted as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 5 (15) NA NA LEFT 5 (20) 10 (20) 15 (25) NA NA On the October 1960 separation examination, the following audiometric results were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 10 (20) 5 (15) NA 5 (10) LEFT 0 (15) 5 (15) 5 (15) NA 10 (15) The Veteran's DD Form 214 also indicates that he was an air traffic controller for the U.S. Air Force and he has stated that his duties exposed him to noise on the flight line and to noise via headsets while conversing with pilots. See Statement in Support of Claim, received March 2011. Accordingly, the Board finds that he has been exposed to noise during service. The question remains as to whether his current hearing loss disability is related to noise exposure during service. The Veteran has stated that subsequent to service, he was not exposed to extensive noise. He worked building engines and then worked in industrial sales. Id. He submitted a positive nexus opinion from his private provider, Dr. K.C.M., dated January 2012. Dr. K.C.M. reviewed the Veteran's service treatment records and observed that the Veteran had a notched high frequency sensorineural hearing loss, which is consistent with noise induced hearing loss. After reviewing the evidence, he opined that it is at least as likely as not that the Veteran's hearing loss is related to noise exposure during service. He explained that science has shown that early noise exposure can manifest as delayed hearing loss just as early sun exposure can manifest much later in life as melanoma. Against the Veteran's claim is a July 2011 negative opinion from a VA examiner. However, the opinion was based solely on the lack of hearing loss noted at separation from service and as such, the opinion is not adequate for rating purposes. Moreover, although the examiner noted the audiometric results on each of the three tests in service, she did not convert the results to ISO-ANSI units, nor did she note or discuss the hearing loss shown at some frequencies on the 1958 and 1959 reports. Also against the Veteran's claim is a May 2012 negative opinion from a VA examiner. The examiner indicated that Dr. K.C.M. did not cite literature in support of his finding and explained that current literature states there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime but that it is unlikely that such delayed effects occur. Accordingly the examiner found it unlikely that the Veteran's hearing loss is related to service. However, like the July 2011 VA examiner, this examiner also did not convert the ASA results in service to ISO-ANSI units, nor did she note or discuss the hearing loss shown at some frequencies on the 1958 and 1959 reports. The Board has reviewed all of the evidence and finds that with one positive opinion and one negative opinion, the evidence is in relative equipoise as to whether the Veteran's hearing loss is related to noise exposure during service. Moreover, some degree of hearing loss, albeit not to a disabling degree as defined by VA under section 3.385, was shown in service at some frequencies on the 1958 and 1959 audiometric tests, and these results raise a possibility that the current disabling hearing loss began during, or was incurred coincident with, service, in which case service connection is warranted regardless of the cause of the hearing loss. 38 C.F.R. § 3.303(a) ("Service connection connotes many factors but basically in means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . .") (emphasis added). For these reasons, the Board resolves reasonable doubt in the Veteran's favor by finding that his bilateral hearing loss is the result of his noise exposure during military service and/or that his current hearing loss was incurred coincident with service. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs