Citation Nr: 1708167	
Decision Date: 03/17/17    Archive Date: 04/03/17

DOCKET NO.  13-00 069A	)	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

Veteran


ATTORNEY FOR THE BOARD

A. Daniels, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to September 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran perfected a timely appeal of this determination to the Board.

A hearing was held in May 2016 in St. Petersburg, Florida before Kathleen K. Gallagher, a Veteran's Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file.


FINDING OF FACT

The Veteran's current bilateral hearing loss is at least as likely the result of noise exposure in service as it is the result of some other cause or factor.


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, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also 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) (2016).

Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

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, 1000, 2000, 3000 or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz 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 (2016). Even if disabling loss is not demonstrated at separation, a veteran many establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

Section 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. At 159. When audiometric test results do not meet the regulatory requirements for establishing a disability at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54.

At his May 2016 Board hearing, the Veteran testified that he worked as a military policeman and was frequently exposed to loud noises. He was assigned to an aviation unit and guarded aircraft. The aircraft would prepare for takeoff close to his building, and the Veteran was never issued hearing protection. When not acting as a guard, the Veteran suffered small arms fire and artillery noise. His unit had constant outgoing and occasionally incoming mortar rounds; the Veteran testified he was on a small airfield with a Special Forces compound that was firing 4.2 mortars frequently in the area. The Veteran is competent to testify about noise exposure that he experienced in service. The Veteran's representative also stated at the hearing that there was a discharge report from the early 1990s that indicated the Veteran has hearing loss in his reserve time. 

In September 1970, the Veteran underwent a separation exam, and an audiological exam was conducted. Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
5
0
10
LEFT
0
0
5
5
5

After the hearing, the Veteran submitted a reserve service treatment record from August 1991 noting decreased hearing and inner ear swelling.

May 2010 VA treatment records indicate the Veteran was seen by an audiologist who performed various tests. Pure tone audiometry via air and bone conduction indicated normal limits between 250-2000 Hz and moderate to moderately severe sensorineural hearing loss between 2000-8000 Hz. The audiologist found that the Veteran's military noise exposure was more likely as not a contributing factor to his hearing impairment. Although the audiologist found that the results were consistent with aging, she also found that the results were consistent with noise-induced cochlear pathology. 

The Veteran received a VA examination in August 2010, and an audiological examination was conducted. Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
25
50
50
LEFT
10
15
25
50
50

Based on the above, the Veteran was diagnosed with high functional hearing loss and sensorineural hearing loss. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. 

The examiner, however, opined in a September 2010 examination report addendum that the Veteran's hearing loss was less likely as not caused by or a result of noise exposure in the military. The rationale provided that the induction and separation audiograms indicate normal hearing bilaterally. Furthermore, service treatment and service medical records were silent for hearing loss complaints. The examiner referred to the Institute of Medicine's finding "that based on current cochlear physiology there was no sufficient scientific basis for delayed onset hearing loss." Although the Institute of Medicine did not rule out that delayed onset hearing loss might exist, it concluded there was no reasonable basis for it. 

There is thus medical opinion evidence both for and against a finding that the Veteran's current hearing loss is etiologically related to service. The VA examiner looked to the separation audiogram and the lack of hearing loss complaints in service treatment records to conclude that the Veteran's hearing loss did not arise during service. The evidence demonstrates that the Veteran's auditory threshold in the August 2010 VA exam was 40 decibels or greater at 3000 Hz and 4000Hz; therefore, he has a current bilateral hearing loss which meets the level of severity under VA regulations to constitute a hearing loss "disability." 38 C.F.R. § 3.385 (2016).  It is also conceded that the Veteran experienced excessive noise as a military policeman during active service. Despite the medical opinion in the September 2010 addendum that suggests age may be a cause for the Veteran's hearing loss, it is noted that the Veteran's hearing loss was noted almost 20 years earlier in August 1991. Therefore, the May 2010 opinion that military noise exposure contributed to hearing loss is of probative value because it considered both age induced and noise induced hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion").

Resolving reasonable doubt in favor of the Veteran, his current hearing loss is at least as likely as not etiologically related to his in-service noise exposure. Thus, the Board concludes that service connection for bilateral hearing loss is warranted on a direct basis. 38 U.S.C.A. § 1110, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.385 (2016); Gilbert, 1 Vet. App. at 55-57 (1990). Having so concluded, the Board does not need to decide whether service connection for hearing loss is warranted on a presumptive basis under 38 U.S.C.A. § 1101, 1112 (West 2014); 38 C.F.R. § 3.307(a)(3), 3.309(a). 
ORDER

Entitlement to service connection for bilateral hearing loss is granted. 



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs