Citation Nr: 1646043 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 12-31 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for hearing loss disability in the left ear. 2. Entitlement to service connection for hearing loss disability in the right ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran had service with various National Guard units and with the United States Navy. Of record are two DD Form 214s showing active duty service from July 6, 1981, to October 16, 1981, and from August 15, 1988, to July 21, 1989. The latter pertains to the Veteran's active duty service with the United States Navy, the period from which he contends his hearing loss stems. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his October 2012 VA Form 9, the Veteran requested a Board hearing before a Veterans Law Judge at the RO. In July 2013, the Veteran notified the RO that he would not be able to attend the hearing due to the passing of his wife. The Veteran has not subsequently asked that the hearing be rescheduled. Thus, the Board finds that the Veteran's hearing request has been withdrawn. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e) (2015). FINDINGS OF FACT 1. Left ear hearing loss was not noted at entry into service, and the evidence does not clearly and unmistakably show that left hearing loss preexisted service and was not aggravated thereby. 2. Left ear hearing loss disability was shown in service and there are subsequent manifestations of the same chronic disease after service. 3. Right ear hearing loss was not noted at entry into service, and the evidence does not clearly and unmistakably show that right hearing loss preexisted service and was not aggravated thereby. 4. Current right ear hearing loss disability is related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left ear hearing loss disability are met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1111, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2015). 2. The criteria to establish service connection for a right ear hearing loss disability are met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1111, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.6(a), 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Given the favorable actions taken below concerning the claims on appeal, the Board will not discuss further whether those duties have been accomplished. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 addition, certain chronic diseases, including organic diseases of the central nervous system, may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). For chronic diseases shown in service, as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Specifically to the claims currently on appeal, Godfrey held that service connection can be granted for a hearing loss disability where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The United States Court of Appeals for Veterans Claims (Court) has also held that VA regulations do not preclude service connection for a hearing loss disability that first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In the instant case, the Veteran asserts that he has bilateral hearing loss as a result of noise exposure during active service in the Navy. Specifically, in his January 2010 Application for Compensation and/or Pension, the Veteran asserted that his hearing loss occurred in 1988. Upon review of the evidence, and in applying the law to the facts of the case, the Board finds that the evidence is at least in a state of relative equipoise on all material elements of the claim. However, because service connection is being granted on slightly different bases for each ear, the Board will analyze the left and the right ear hearing loss claims separately. A. Left Ear Current Disability The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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 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 Board finds that the Veteran has a current hearing loss disability in his left ear for VA purposes. An August 2014 VA examination report reflects pure tone audiometry testing of the left ear as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 30 45 60 65 Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss disability of the left ear for VA purposes is established. See 38 C.F.R. § 3.385. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In-Service Incurrence Regarding the in-service incurrence requirement, a July 1988 entrance examination shows audiometer results of the left ear as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 5 25 30 The Board notes that although the Veteran's left ear hearing threshold at 4000 Hertz was elevated in his July 1988 Navy entrance exam, the Veteran's hearing pattern did not meet VA's criteria of hearing loss for compensation purposes under 38 C.F.R. § 3.385. Further, service treatment records (STRs) in August 1988 show audiometer results of the left ear as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 10 20 40 This demonstrates that the Veteran had a hearing loss disability in service because auditory threshold in this August 1988 STR were 40 decibels in 4000 Hertz. See 38 C.F.R. § 3.385. Notably, however, there is a question as to whether hearing loss pre-existed the Veteran's service in the Navy. Indeed, the RO denied the veteran's claims upon finding that hearing loss pre-existed service and a VA examiner indicated a pre-existing high frequency hearing loss disability. The July 1988 entrance examination also shows that the Veteran had some degree of left ear hearing loss in the 3000 and 4000 hertz range. See Hensley, 5 Vet. App. at 157. A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. The statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected." (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-existing conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) ("[o]nly such conditions as are recorded in examination reports are considered as noted."). If the degree of hearing loss noted on an entrance medical examination did not meet VA's definition of a "disability" for hearing loss under 38 C .F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 C .F.R. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). Accordingly, because the Veteran's pre-service hearing acuity, although diminished, did not rise to the level considered to be a disability for VA purposes, the Veteran in this case is presumed sound. See McKinney, 28 Vet. App. at 21. As noted, this presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). The evidence does not clearly and unmistakably show that either hearing loss existed before acceptance and enrollment into service, or that it was not aggravated by service. The evidence shows that the Veteran had hearing loss in service because auditory threshold in August 1988 STR were 40 decibels in 4000 Hertz. The evidence also shows that a hearing loss disability for VA purposes first manifested in service. Once the presumption of soundness attaches and has not been rebutted, the disease is considered to have occurred in service. However, in order for the disability to be service connected, there must be a nexus between the current disability and the in-service disease. Nexus For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In Walker, the Court noted without extensive discussion that because the Veteran sought entitlement to service connection for bilateral hearing loss disability, a disease not listed as a chronic disease in the statute or regulation, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) were inapplicable. Walker, 708 F.3d at 1340. The Federal Circuit subsequently reaffirmed this view in an unpublished decision. See Jackson v. Principi, No. 2012-7179, 2013 WL 2461843, at *3-4 (Fed. Cir. June 10, 2013). VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system); see also VA Adjudication Manual, M21-1 III.iv.4.B.4.a (November 8, 2016) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)"). The Board will therefore consider the Veteran's bilateral hearing loss disability to be a chronic disease until the conflict between the Federal Circuit's language and VA policy is specifically addressed by the Federal Circuit. The evidence shows that the Veteran had a chronic disease in service and the same chronic disease after service. Pursuant to 38 C.F.R. § 3.303(b), with chronic disease shown as such in service subsequent manifestations of the same chronic disease, however remote, are service connected unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008) (medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence shows that a veteran had a chronic disease in service and that he still has the same chronic disease). The Veteran has hearing loss in his left ear for VA purposes, which was incurred while in service. Therefore, service connection for left ear hearing loss is granted. B. Right Ear Current Disability The Board finds that the Veteran has a current hearing loss disability in his right ear for VA purposes. An August 2014 VA examination report reflects pure tone audiometry testing of the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 55 60 Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies, a hearing loss disability of the right ear for VA purposes is established. See 38 C.F.R. § 3.385. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met. See Davidson, 581 F.3d at 1316. In-Service Incurrence Regarding the in-service incurrence requirement, a July 1988 entrance examination shows audiometer results of the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 30 Regarding hearing loss in service, the STRs in August 1988 show audiometer results of the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 10 35 This is the only in-service hearing data of record. Although this audiogram does not show that the Veteran had a right ear hearing loss disability for VA purposes, given that the Veteran was exposed to jet engine noise in service, there was a threshold shift of hearing loss in the right ear while in service, specifically at the 500, 1000, 2000, and 4000 Hertz range, and the Veteran's credible testimony that he began experiencing hearing loss in 1988 while in service, the Board finds that right ear hearing loss occurred in service. Regarding the issue of hearing loss prior to service, as hearing loss disability was not noted at entry into service, the presumption of soundness attached. See McKinney, 28 Vet. App. at 15. As the evidence does not clearly and unmistakably show that either the hearing loss existed prior to service, or that it was not aggravated by service, the presumption of soundness has not been rebutted. As the presumption of soundness is attached and has not been rebutted, the disease, therefore, is considered to have occurred in service. See Gilbert, 26 Vet. App. at 48. However, in order for the disability to be service connected, there must be a nexus between the current disability and the in-service disease. Holton, 557 F.3d at 1366. Nexus The Veteran had a declining hearing acuity in service and a chronic hearing disease after service. The Board recognizes that July 2010 and August 2014 VA examiners opined that the Veteran's hearing loss was less likely than not caused by or a result of in-service noise exposure because "[t]he Veteran entered active duty Navy service in 1988 with a mild high frequency," and that the Veteran did not have hearing loss for VA purposes while in service. However, the threshold shift of hearing acuity in the right ear while in service, which demonstrated a worsening of the veteran's hearing. Further, the Veteran has provided credible statement with respect to his hearing disability. The Veteran claimed that he began experiencing hearing loss in 1988 while in service. He described his difficulty in understanding instructions from his managers and turning on the television too loud for other people. He further explained that he was not exposed to occupational or recreational noise exposure after service. For the following reasons, the Board finds that service connection for right ear hearing loss is warranted. First, noise exposure in service has been conceded because the Veteran suffered acoustic trauma through exposure to jet aircraft noise. Further, the Board finds the Veteran competent and credible to describe the continuity of symptomatology for his hearing loss as it existed from his time of service, and the progressive worsening of symptoms through the years. As noted, for chronic diseases noted in service, the nexus prong can be established by showing a continuity of symptomology. 38 C.F.R. § 3.303(b). For the foregoing reasons, including the Veteran's experience in service associated with his conceded noise exposure, and his credible statements, the Board finds that the evidence of record is at least in equipoise as to the question of service connection, and that his right ear hearing loss is at least as likely as not due to noise exposure during his period of active service. As such, the Board concludes that service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b); Gilbert, 1 Vet. at 53-56. ORDER Entitlement to service connection for left ear hearing loss disability is granted. Entitlement to service connection for right ear hearing loss disability is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs