Citation Nr: 1604990	
Decision Date: 02/09/16    Archive Date: 02/18/16

DOCKET NO.  14-17 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1980 to May 1984.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In November 2015 the Board remanded this claim for further development. The Board finds that the AOJ has complied with the November 2015 remand instructions by providing a VA medical examination in November 2015 and subsequently issuing a supplemental statement of the case (SSOC).

On appeal, the Veteran's claims for entitlement to left ear hearing loss disability and tinnitus was granted in a December 2015 rating decision. Thus, the only issue remaining on appeal is the claim for entitlement to service connection for right ear hearing loss disability.


FINDING OF FACT

Right ear hearing loss disability was aggravated in the Veteran's military service.


CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss disability on the basis of aggravation have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants the Veteran's claim for entitlement to service connection for right ear hearing loss disability, which represents a complete grant of the benefit sought on appeal. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159.

Legal Criteria

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from 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. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). 

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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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 (2015).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81   (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran avers that he has right ear hearing loss disability as a result of active service. An essential element of a claim for service connection is evidence of a current disability. A July 2013 VA examination report revealed that pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
65
60
55


The Veteran's speech recognition score was 98 percent for the right ear. Based on the foregoing, the Veteran does have right ear hearing loss disability for VA purposes; thus, an essential element has been met. 38 C.F.R. § 3.385. 

A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The claims folder reflects that during active service the Veteran experienced high frequency bilateral hearing loss due to his military occupational specialty (MOS) as an Amtrac Crewman. (See November 1983 chronological record of medical care).The Board finds that the Veteran did experience some exposure to acoustic trauma as an Amtrac Crewman. 38 U.S.C.A. § 1154(a) (West 2014). As such, the Board finds that an element of service connection claim, injury in service, has been met.

A third element for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury, or, in some cases, continuity of symptoms. The Board finds, based on the reasons below that the competent, credible evidence of record is at least in equipoise. Thus the third requirement has been met.

The Veteran's April 1980 hearing acuity upon entrance into service reflected the Veteran had right ear hearing loss. The Veteran's April 1980 entrance examination reflected the following results: 





HERTZ



500
1000
2000
3000
4000
RIGHT
25
5
15
45
40

In Hensley v. Brown, 5 Vet.App. 155, 157 (1993) the Court held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Therefore, the Veteran's entrance examination report reflects that the Veteran had right ear hearing loss upon entering service.

Generally, for veterans, there is a presumption of sound condition upon entrance into service unless a defect is "noted" on the entrance examination; and a presumption of aggravation of a preexisting condition if the preexisting condition worsens in severity during service. Clear and unmistakable evidence is required to rebut the presumption of aggravation, to include a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. §§ 1111, 1153 (West 2014); 38 C.F.R. §§ 3.304(b), 3.306 (2015).

In a November 2015 VA supplemental medical opinion the examiner opined that the Veteran's current right ear hearing loss disability was not aggravated or permanently worsened by his military service. The examiner explained that there was no threshold shifts between the Veteran's April 1980 entrance examination and his May 1984 separation examination. The Board finds that the November 2015 VA opinion to be of little probative value.

The November 2015 examiner noted only the Veteran's entrance and separation examinations as a basis for the negative medical opinion. The claim folder however, reflects that during the Veteran's active service his right ear hearing did experience threshold shifts. 

An October 1980 audiogram reflected the following results:





HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
50
50

A January 1983 audiogram reflected the following results:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
15
50
60

The January 1983 audiology report further noted that the Veteran was subsequently put on a hearing conservation program and mandated to use hearing protection.

Additionally, a November 1983 audiogram reflected the following results:





HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
10
45
50

Based on the above audiogram results, the Veteran's right ear hearing did experience threshold shifts during service. Furthermore, as noted above, the Veteran's STRs noted the Veteran with high frequency bilateral hearing loss due to his MOS. The Board finds that the Veteran's right ear hearing loss did worsen in service. As such, the presumption of aggravation of a preexisting condition is attached. The claims folder does not contain clear and unmistakable evidence to rebut the presumption. Thus, service connection for right ear hearing loss disability is warranted.

The Board finds that the evidence is at least in equipoise regarding service connection for right ear hearing loss disability, and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for right ear hearing loss disability is granted.


ORDER

Entitlement to service connection for right ear hearing loss disability on the basis of aggravation is granted.

____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs