Citation Nr: 1625626	
Decision Date: 06/27/16    Archive Date: 07/11/16

DOCKET NO.  13-07 166	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Smith, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from November 1963 until November 1965, with service in the Republic of Vietnam.  This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

In July 2014, the Veteran presented testimony by live videoconference before the undersigned Veterans Law Judge.  A copy of the hearing transcript is located in the Virtual VA electronic claims folder. 

This appeal initially included a claim regarding posttraumatic stress disorder (PTSD).  In an October 2015 rating decision, the RO granted entitlement to service connection for PTSD, and assigned a 50 percent evaluation effective June 21, 2011.  As this represents a full grant as to that benefit sought on appeal, the Board has limited its scope accordingly.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  

This case consists of documents in the Veterans Benefits Management System (VBMS) and in Virtual VA.  With the exception of the July 2014 hearing transcript, all documents in Virtual VA are duplicative of those in VBMS, or not relevant to the issue on appeal.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, bilateral sensorineural hearing loss is etiologically related to acoustic trauma sustained during the Veteran's period of active service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).  In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim of entitlement to service connection are moot.  

Service Connection

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015).  To establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any disease initially diagnosed after 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) (2015).

An alternative method of establishing the second and third service connection elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a) (2015).  38 C.F.R. § 3.303(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Sensorineural hearing loss is considered an organic disease of the nervous system that is considered a chronic disease under 38 C.F.R. § 3.309(a).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).

For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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). 

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence of the record.  When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, the Veteran seeks entitlement to service connection for bilateral hearing loss, which he claims is the result of in-service exposure to hazardous noise.  The Veteran's military occupational specialty was basic field artillery, which is indicative of noise exposure.  Additionally, the Veteran is already service-connected for tinnitus due to acoustic trauma sustained in service; thus VA has recognized the Veteran's in-service hazardous noise exposure.

The Veteran's service treatment records show that upon entrance into service, he passed a whispered voice test.  Upon separation from service, audiometric testing results converted from ASA units to ISO units showed the following:

Hertz
500
1000
2000
3000
4000
Right Ear
20
15
15
not tested
10
Left Ear
15
15
15
not tested
10

An August 2006 VA primary care record notes that the Veteran's hearing loss had been present long term.

In a June 2011 written statement, the Veteran reported that a few months after he returned from Vietnam, he applied to be a police officer but failed a hearing test and was therefore disqualified as an applicant.

The Veteran was afforded a VA audiology evaluation in August 2011.  At that time, the audiometric testing results showed the following:

Hertz
1000
2000
3000
4000
Average
Right Ear
25
45
70
75
54
Left Ear
25
50
55
75
51

Speech recognition ability was measured at 96 percent in the right ear and 90 percent in the left ear.  The audiologist diagnosed bilateral sensorineural hearing loss.  The examiner opined that the Veteran's bilateral hearing loss was less than likely related to his period of active service.  In support of that opinion, the examiner noted that there was no evidence of hearing loss at time of separation.  In addition, the examiner stated that the effects of hazardous noise exposure, such as tinnitus and hearing loss, are present at the time of injury; and that the literature did not support delayed onset hearing loss from noise exposure.  With regard to the Veteran's tinnitus, the examiner opined that the tinnitus was at least as likely as not related to the Veteran's period of active service, as the Veteran was likely exposed to hazardous noise in service.  

The examiner's opinion on tinnitus directly contradicted the rationale provided in support of the negative nexus opinion on hearing loss, as the audiologist had previously stated that the effects of hazardous noise exposure such as tinnitus are present at the time of injury, rather than having a later onset.  For that reason, among others, in February 2015 the Board found the August 2011 audiology evaluation report to be inadequate, and remanded the matter to secure an adequate opinion.

In a June 2012 VA audiology note, it was reported that the Veteran had been disqualified for work in law enforcement shortly after military service due to hearing loss.  It was further noted that the Veteran was exposed to military noise in Vietnam, but not in his civilian life following service.

At the July 2014 Board hearing, the Veteran testified that he was exposed to heavy artillery noise while in combat in Vietnam, and that he had noticed hearing difficulty since service.  In particular, the Veteran reported being exposed to the sound of Howitzer artillery fire on several occasions, and following such exposure he testified that he experienced temporary total hearing loss.  The Veteran did not recall wearing hearing protection at the time.  The Veteran denied any exposure to hazardous noise following active duty service in his civilian occupation as a baker.

In July 2015, the Veteran was afforded another VA audiology evaluation.  Upon examination, the audiologist diagnosed bilateral sensorineural hearing loss.  The audiologist opined that the Veteran's right ear hearing loss was unrelated to his period of active service.  In support of this opinion, the audiologist noted that the Veteran's right ear hearing was normal upon separation, and that there was no significant threshold shift in service.  The audiologist stated that they were unable to comment as to the Veteran's report that he failed a hearing test shortly after service and that he was not exposed to hazardous noise following service, as there was no documentation supporting those contentions.  With regard to the left ear, the audiologist stated that Veteran's left ear hearing loss was etiologically related to his period of active service.  In an addendum opinion, the audiologist clarified that left ear hearing loss was less than likely related to service, as the Veteran had normal hearing loss upon separation and the literature did not support delayed onset hearing loss from noise exposure.  Again, the Board finds the VA audiology evaluation to be inadequate as the audiologist failed to consider the Veteran's lay statements regarding onset and continuity of symptomatology, despite the absence of supporting documentation.  

Based on the foregoing, the Board finds that entitlement to service connection for bilateral hearing loss is warranted.  First, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes.  38 C.F.R. § 3.385; see August 2011 and July 2015 audiology evaluations.  Second, although the Veteran has provided competent and credible testimony regarding diminished hearing loss during service, the evidence of record does not support a finding of a chronic condition during service because there is not manifestations sufficient to identify the disease entity along with sufficient observation to establish chronicity at that time; as noted by the VA examiners, hearing loss was normal during service.  See 38 C.F.R. § 3.303 (b).

The Veteran has also, however, provided competent and credible testimony that he has experienced hearing loss since service separation.  See July 2014 hearing testimony; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006).  As sensorineural hearing loss is a chronic disease listed at 38 C.F.R. § 3.309(a), a demonstration of continuity of symptomatology is sufficient to support a nexus between the noted in-service hearing impairment, and the Veteran's currently diagnosed bilateral sensorineural hearing loss.  See 38 C.F.R. § 3.303(b).  With regard to the negative nexus opinions provided in the 2011 and 2015 VA audiology evaluations, those opinions are inadequate.  As noted above, the 2011 examination was internally inconsistent.  The 2015 VA examination did not consider all the relevant evidence of record.  Accordingly, these examinations are not probative evidence against the claim and are assigned no weight by the Board.  Moreover, the Veteran's audiology evaluation upon separation was incomplete with no values recorded at 3000 Hertz, therefore it does not provide conclusive evidence that hearing loss was not noted in service.  Thus, resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs