Citation Nr: 1639260 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 13-25 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1955. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The Veteran testified at an August 2016 Board videoconference hearing. The hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2015). FINDINGS OF FACT 1. The Veteran was exposed to hazardous noise in service. 2. The evidence is at least in equipoise as to whether currently diagnosed bilateral hearing loss is related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2016). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on chronic in service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may 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). In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does "not serve as a bar to service connection" where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service Connection Analysis The Veteran contends in lay statements and in August 2016 Board hearing testimony that bilateral hearing loss is related to his duties as a weapons instructor for the Marine Corps. He testified that he served as a weapons instructor for just over 18 months, during which time he trained recruits on how to fire weapons for five days a week, eight hours a day. He testified, additionally, that Saturday mornings were spent teaching recruits to throw grenades and sometimes included other live firing demonstrations. After reviewing all the lay and medical evidence, the Board finds, resolving all reasonable doubt in the Veteran's favor, that bilateral hearing loss was incurred in service. The Veteran has currently diagnosed bilateral hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. (CONTINUED ON NEXT PAGE) On the authorized VA audiological evaluation in February 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 45 90 105+ LEFT 20 30 50 75 100 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. Accordingly, the Board finds that the Veteran has met the threshold criteria for establishing a current hearing loss "disability" in both ears for VA purposes in accordance with 38 C.F.R. § 3.385. The Veteran also submitted private audiometric data dated in October 2010. However, because speech recognition testing was not conducted using the Maryland CNC as required under 38 C.F.R. § 3.385, those findings have not been reported by the Board. The Board finds that the Veteran was exposed to hazardous noise in service. As noted above, in lay statements and Board hearing testimony, the Veteran identified extensive noise exposure in service while serving as a weapons instructor for a period of over 18 months. He identified noise exposure from gun fire, grenades, and other weapons for over 40 hours a week during this time. The Veteran's DD Form 214 reflects a Military Occupational Specialty (MOS) of "0311." The Duty MOS Noise Exposure Listing referenced in DVA Fast Letter 10-35 for Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus shows that Veterans with a duty MOS beginning with "03" in Infantry in the Marine Corps have a high probability of exposure to hazardous noise. The Veteran's personnel records indicate that during the 18 month time period identified by the Veteran, he was assigned to a Weapons Training Battalion and a correction to his DD Form 214 shows that the Veteran was in the First Marine Division Machine Gun School. The Board finds that the Veteran is competent to describe noise exposure in service, and the Board finds that his report of exposure to noise while working as a weapons instructor is credible and consistent with his duties in service. The Board finds that the Veteran had minimal post-service noise exposure. In a November 2010 statement, the Veteran identified post-service employment as a division foreman in a plastics extrusion facility, a partnership in a plastics extrusion company, a plant manager in a glass decorating company, and as a purchasing manager and director of purchasing at a retail chain. He stated that 80 to 90 percent of this time was spent in an office environment in an administrative capacity, and that he was rarely subjected to unusually loud machinery noises. The evidence is at least in equipoise as to the question of whether currently diagnosed sensorineural hearing loss is related to noise exposure in service. Service treatment records show that whispered voice testing was 15/15 in each ear on December 1952 enlistment and November 1955 separation examination reports. While hearing complaints were not noted in service treatment records, the Veteran has provided credible lay evidence identifying the acoustic trauma in service followed by hearing loss symptoms in service. There is conflicting evidence of record, with regard to whether currently diagnosed hearing loss is related to service. A February 2011 VA examiner initially opined that tinnitus and hearing loss were at least as likely as not caused by or a result of the Veteran's in-service noise exposure. In the examiner's rational, however, she indicated that the Veteran reported noticing hearing loss about four years prior, suggesting that the progression of hearing loss was not related to military service. The VA examiner also reasoned that because no other hearing tests were available until October 2010, it was impossible to determine a nexus for hearing loss. The VA examiner stated while other factors such as age and health likely had a contribution to hearing loss, the opinion was based on the Veteran's report of tinnitus beginning soon after the end of service and significant military noise exposure. When asked for clarification, the February 2011 VA examiner stated in a December 2011 supplemental opinion that hearing loss was not, at least as likely as not, related to military noise exposure based on a delay in the onset of hearing loss of over 40 years after service separation, and on factors such as age and health which could also result in high frequency sensorineural hearing loss. While the VA examiner relied heavily on the delayed onset of hearing loss of over 40 years in providing the December 2011 opinion, the Veteran and his representative contend during August 2016 Board hearing testimony that due to the gradual onset of hearing loss, most people don't realize that it is a problem until many years later. The Veteran has provided statements and testimony identifying the presence of hearing loss symptoms in service. Additionally, the Board finds that October 2010 statements submitted by lay witnesses in support of the Veteran's claim tend to identify a longer history of hearing loss than what the Veteran identified during the later February 2011 VA examination, consistent with his contention that hearing loss symptoms were present, but were not noticed. In that regard, the Veteran's wife reported that the Veteran had ringing in his ears ever since they were married in 1958, and as the years progressed, his hearing deteriorated significantly. The Veteran's adult daughter reported that the Veteran always had some difficulty hearing, but that it seemed to have gotten worse over the past years. A statement from the Veteran's other daughter indicates that the Veteran has related his hearing loss to exposure to gun fire while serving in the Marines, and that hearing loss had progressively worsened. The Board finds that the Veteran and lay witnesses are competent to identify observed symptoms of hearing loss and that the statements provided are credible. The Board finds that the lay evidence, when considered together, identifies a long history of progressively worsening hearing loss with an unknown date of onset. The record also includes an August 2011 private medical opinion from Dr. R.K. which establishes a nexus between currently diagnosed hearing loss and in-service noise exposure. Treatment records from Dr. R.K. show that he treated the Veteran for a right tympanostomy with tube placement. In an August 2011 treatment report, Dr. R.K. noted that the Veteran had a long history of noise exposure in the military. He noted that while working for a year-and-a-half on a rifle range, the Veteran had multiple blast exposures and gunfire exposures without hearing protection. The Veteran was diagnosed with mixed hearing loss, likely secondary to longstanding noise-exposure. Dr. R.K. opined that a significant portion of the Veteran's hearing loss was, indeed, likely service-related due to his long history of blast exposure. The Board finds that the opinion from Dr. R.K., which was based on the Veteran's exposure to hazardous noise as a weapons instructor, consistent with the Board's own findings, is probative. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs