Citation Nr: 1604336 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 10-39 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a bilateral sensorineural hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in New York, New York. This case was remanded by the Board to the RO in March 2014 to hold a Travel Board hearing, as the Veteran had requested. In August 2014, the Veteran amended his request for a Travel Board hearing to a request for a Central Office hearing. A Central Office hearing was held in November 2015. Therefore, the mandate of the remand order was satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the August 2009 rating decision, August 2010 Statement of the Case (SOC), May 2012 Supplemental Statement of the Case (SSOC), and March 2014 Board decision treated the claim on appeal as a petition to reopen, which usually requires the submission of new and material evidence. Evidence submitted since the last prior denial, a January 1996 rating decision by the RO, included service records received into evidence in October 2009 that support the Veteran's statements regarding exposure to artillery fire. No reference to these records is made prior to their receipt in October 2009. Therefore there is no indication that these records had been associated with the claims file at the time of the January 1996 rating decision. 38 U.S.C.A. § 3.156(c)(1) (2015) provides that if, after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. Given the newly associated service records, the Board finds that new and material evidence pursuant to 38 U.S.C.A. § 3.156(c)(1) (2015) is not required for reconsideration, and the Board may adjudicate the Veteran's claim for service connection as an original claim rather than as a petition to reopen. 38 U.S.C.A. § 3.156(c)(1) (2015). The Board has not only reviewed the Veteran's physical claims file, but also his electronic claims file to ensure a total review of the evidence. The issue of entitlement to service connection for tinnitus has been raised by the record in the September 2009 Notice of Disagreement (NOD), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT The Veteran has a for VA purposes thathas not been satisfactorily disassociated from the current bilateral sensorineural hearing loss disability bilateral sensorineural hearing loss disability diagnosed in service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, a bilateral sensorineural hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA describes VA's duties to notify and assist veterans 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) (2015). As discussed in more detail below, sufficient evidence is of record to grant the claim for a bilateral sensorineural hearing loss disability. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Analysis Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain chronic disorders shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2015). Sensorineural hearing loss is considered an "organic disease of the nervous system," and is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) (2015) applies to a hearing loss claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Post-service audiometric findings indicated the Veteran's bilateral sensorineural hearing loss currently meets the regulatory definition of a hearing loss disability. At the October 2006 VA examination, the Veteran was diagnosed with asymmetrical sensorineural hearing loss. He had speech recognition scores of 88 percent in the right ear and 94 percent in the left ear. The specific puretone threshold results of the October 2006 examination were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 45 55 55 LEFT 15 20 20 20 30 For the purpose of applying the law 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 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 (2015). For the right ear, the Veteran's hearing test showed thresholds of 40 decibels or greater at 2000, 3000, and 4000 Hertz; as well as, a speech recognition score of 88 percent. Additionally, a November 2010 audiogram performed at the Albany, NY VA Medical Center (VAMC) showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 70 N/A 80 LEFT 10 30 25 N/A 50 For the left ear, the Veteran's hearing test showed a threshold of 40 decibels or greater at 4000 Hertz. The Board notes this examination did not include a controlled speech discrimination test (Maryland CNC); however, it was conducted by a licensed audiologist and contains puretone thresholds sufficient to show a current sensorineural hearing loss disability. Thus, affording the Veteran the benefit of the doubt, the medical evidence demonstrates the Veteran currently has a bilateral sensorineural hearing loss disability for VA purposes, and the first Hickson element is met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.102 (2015). Service treatment records indicated the incurrence of sensorineural hearing loss from acoustic trauma. An undated clinical record indicated the Veteran was exposed to 155 millimeter (mm) gunfire and was diagnosed with sensorineural hearing loss. The record further indicated that the Veteran was to have no further exposure to loud sounds, gunfire, or artillery. This coincided with treatment notes that indicated the Veteran reported hearing loss in October 1968. Further, a comparison of the Veteran's entrance and exit examinations indicated decreased hearing acuity. As a preliminary matter, the Board notes that prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Afterwards, audiometric results standards were set by the International Standards Organization (ISO)-American Standards Institute (ANSI). Audiometric results dated prior to November 1967 must be converted from ASA units to ISO units for proper comparison to the Veteran's subsequent test results. Such conversion requires the following amounts to be added to the recorded ASA audiological results: 15 at 500 Hertz; 10 at 1000 Hertz; 10 at 2000 Hertz; 10 at 3000 Hertz; and 5 at 4000 Hertz. The converted audiometric results of the Veteran's June 1967 entrance examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 N/A 5 LEFT 15 10 10 N/A 5 The Veteran's June 1969 exit examination had the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 25 35 20 LEFT 25 25 20 25 30 These two tests showed a clear threshold shift in the Veteran's hearing. Although, they do not meet the regulatory definition of a hearing loss disability at 38 C.F.R. § 3.385 (2015), a comparison of the tests does demonstrate a degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss). Thus, the second Hickson element was met. Sensorineural hearing loss is a chronic disease as defined in 38 C.F.R. § 3.309(a) (2015) and therefore, subsequent manifestations, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2015). Although the October 2006 VA examiner's opinion stated that the Veteran's hearing loss was not at least likely as not due to his military career, the Board assigns little weight to this opinion. The opinion provided no possible intercurrent causes for the Veteran's hearing loss. In fact, the examination report indicated there was no history of significant occupational or recreation noise exposure after the Veteran's military service. Further, the opinion contained the factually incorrect statement that the Veteran's hearing loss did not occur until December 2005. The Veteran's service treatment records and exit examination indicated hearing loss, as noted above. Additionally, a VA examination from March 2003 indicated the Veteran had hearing loss, as did a treatment record from November 2002. Thus, the VA examiner's opinion was not sufficient to overcome the presumption of service connection of a chronic disease diagnosed in service. Therefore, the third Hickson element is met, and service connection is warranted. In summary, the Veteran has a for VA purposes thathas not been satisfactorily disassociated from the current bilateral sensorineural hearing loss disability bilateral sensorineural hearing loss disability diagnosed in service. As such, the evidence is at least in equipoise as to the question of whether a bilateral sensorineural hearing loss disability was incurred in service, and service connection is warranted on that basis. 38 U.S.C.A. § 5107 (West 2014). ORDER Entitlement to service connection for a sensorineural hearing loss disability is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs