Citation Nr: 1746985 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-14 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Marine Corps from April 1968 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2014 and a transcript of that proceeding is of record. In October 2015, the Board granted entitlement to service connection for tinnitus, and remanded the issues of entitlement to service connection for right and left hearing loss for further development. In October 2016, the Board requested an expert medical opinion regarding the etiology of the Veteran's bilateral hearing loss. The matter has since been returned for further appellate review. FINDINGS OF FACT Right and left ear hearing loss are etiologically related to in-service exposure to hazardous noise. CONCLUSION OF LAW The criteria for service connection for right and left hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2016). 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) (2016). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claims decided herein are moot. Similarly, any deficiency with the Board hearing or with compliance with prior remand directives is also moot. See 38 C.F.R. § 3.103 (c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran seeks entitlement to service connection for right and left hearing loss that he asserts is etiologically related to in-service exposure to hazardous noise levels. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). In addition, service connection for certain chronic diseases, including sensorineural hearing loss (organic diseases of the nervous system), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although 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. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111 (West 2014); 38 C.F.R. § 3.304 (b) (2016). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a preexisting disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, applies and the burden falls on him, not VA to establish aggravation. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2016); Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 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). A Veteran is competent to report exposure to hazardous noise, when symptoms of hearing loss first manifested, and that the symptoms have continued since service. Layno v. Brown, 6 Vet. App. 465 (1994). 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; every item of evidence does not have the same probative value. 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 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's DD 214 shows that his military occupation specialty was field artillery battery man and he is in receipt of a Combat Action Ribbon, among other awards. The Veteran asserts that he was exposed to hazardous military noise levels in service, and he denies post-service exposure to hazardous noise. In-service hazardous noise exposure has been established in light of the Veteran's testimony, his military occupation specialty, and his Combat Action Ribbon. The Veteran's March 1968 entrance examination recorded the Veteran's pure tone thresholds in decibels were as follows: Hertz (Hz) 500 1000 2000 3000 4000 Right ear 5 5 5 X 5 Left ear 90 90 90 X 40 The examiner noted that the Veteran had defective hearing, and assigned the Veteran a H2 profile. The Veteran's October 1969 separation exam, however, showed normal hearing bilaterally (15/15) following a whispered voice test. The October 1968 separation examination fails to provide a clear indication of the presence or absence of hearing loss as whispered voice tests cannot be considered as reliable evidence that hearing loss is present. See VBA Training Letter 21ID (10-02). The Veteran underwent a VA audio examination in January 2007. At that time the Veteran reported military noise exposure from firearms, helicopters, and heavy artillery without the use of hearing protection. He reported that his hearing loss had its onset in the mid-1970s, shortly after separation from service. He denied post-service hazardous noise exposure except for powered lawn equipment. Pure tone thresholds in decibels measured as follows: Hertz 500 1000 2000 3000 4000 Right ear 55 45 40 40 50 Left ear 20 20 20 35 60 The examiner diagnosed moderate to mild conductive hearing loss in the left ear, and mild to moderately severe sensorineural hearing loss in the right ear. The examiner concluded that the Veteran's hearing loss was not related to military noise exposure, but did not provide a supporting explanation. In March 2007, the Veteran submitted an opinion from his private physician who concluded that while the Veteran had a legitimate claim for a military noise induced sensorineural hearing loss, there was no obvious explanation for the conductive loss in the right ear as it could be either otosclerosis of malleus fixation. The physician called into question the validity of the Veteran's audiological testing results at entrance which showed preexisting left ear hearing loss. The physician failed to address whether a preexisting left ear hearing loss disability was aggravated by service. The Veteran underwent another VA examination in March 2013, at which time pure tone thresholds in decibels were as follows: Hertz 500 1000 2000 3000 4000 Right ear 60 65 55 65 65 Left ear 40 35 35 35 75 The audiologist diagnosed bilateral sensorineural hearing loss and opined that it was not related to the Veteran's period of service. The examiner reasoned that the October 1969 whispered voice test showed the Veteran had normal hearing at separation and the Veteran did not report an onset of hearing loss in service. The examiner also noted the Veteran had chronic middle ear pathology. The examiner also opined that the Veteran's preexisting left ear hearing loss was not aggravated by his period of service. This opinion is inadequate as the examiner did not consider the Veteran's competent reports of diminished hearing in service and since separation from service; and did not address the Veteran's in-service noise exposure, the unreliability of the whispered voice test, or the March 2007 private opinion. In November 2015, the Veteran underwent another VA examination and pure tone thresholds in decibels were recorded as follows: Hertz 500 1000 2000 3000 4000 Right ear CNT CNT CNT CNT CNT Left ear 55 50 50 75 80 The audiologist explained that the Veteran's reported pure tones were elevated and too inconsistent to use, thus were marked as could not test (CNT); however, his speech discrimination ability was good for the right ear, despite the inconsistent pure tone results. The invalid results notwithstanding, the audiologist concluded that the Veteran had mixed hearing loss in the right ear, but that due to poor reliability she could not definitively determine its extent or etiology without resorting to mere speculation. The audiologist also concluded that the Veteran's preexisting left ear sensorineural hearing was not aggravated by military noise exposure. Referring to the Veteran's STRs, the audiologist explained that the Veteran did not have a significant threshold shift beyond normal variability/normal progression or any middle ear problem in service. She noted that while his separation physical only contained a whispered voice test, because his hearing was markedly better upon evaluation in 2015, military noise exposure did not result in aggravation of his left ear hearing loss. She also highlighted that the Veteran had previously reported that the onset of hearing loss was not until after the service and that he had chronic middle ear pathology. The 2015 examiner did not sufficiently explain how the Veteran's left ear hearing could have improved so significantly since 1968, and no etiology opinion for the right ear was provided so the Board sought clarification. In October 2016, an audiological expert reviewed the Veteran's claims file and provided several clarifying opinions. First, the examiner determined that the 1968 audiogram at induction was not an accurate reflection of the Veteran's hearing upon entrance into service, noting that in the Veteran's STRs were two Bekesy tracings, one corresponding to the 1968 pre induction exam that was recorded on the Veteran's entrance examination. The second was not labeled with a date but was marked "42" and "H-1." The 1968 tracing showed normal hearing in the right ear, but readings for the left ear were off the measurable chart for 500, 1000, 2000, and 3000Hz, rising to moderate at 4000 and 6000Hz. The undated Bekesy tracing indicated normal hearing in the right ear, and normal hearing in the left ear from 500 to 4000Hz, with moderate high frequency loss at 6000Hz. The audiologist explained that Bekesy tracings were automatic and did not have any tester input onto the validity of the exam, so it was impossible to know if one exam was more accurate than the other, or what time frame the second exam was performed. Taking into account the more recent audiograms from 2007, 2013, and 2015, that showed better left ear hearing acuity than was recorded upon entrance, the examiner concluded that the 1968 audiometric findings did not represent an accurate reflection of the Veteran's hearing at the time of enlistment. Thus, it was impossible to know what the Veteran's hearing was upon entrance into service. The audiologist then opined that it was at least as likely as not that military noise exposure contributed to the Veteran's left ear hearing loss. The audiologist explained that there was sufficient evidence of in-service noise exposure and hearing loss symptoms. The audiologist also opined that in-service exposure to hazardous noise contributed to the Veteran's right ear mixed hearing loss. The audiologist explained that the 2007, 2013, and 2015 VA examinations showed great variability amongst the tests so it was difficult to ascertain how accurate the audiograms were, therefore it was uncertain whether the Veteran did indeed have mixed/conductive hearing loss. Regardless, the examiner found that in light of the noted exposure to hazardous noise and reported hearing loss symptoms, it was at least as likely as not that the right ear hearing loss was related to the Veteran's period of service. Based on the foregoing, the Board finds that entitlement to service connection for right and left ear hearing loss is warranted. Although left ear hearing loss was noted upon entry into service, the 2017 VA chief audiologist opined that the 1968 audiogram that demonstrated left ear hearing loss disability was inaccurate. The Board finds the 2017 audiologist's opinion highly probative, and therefore the record does not establish the Veteran had left ear hearing loss disability upon entrance and the claim is one for regular service connection rather than for aggravation of a preexisting disability. Turning to the first element of service connection, the Veteran has a current diagnosis of right and left ear hearing loss for VA purposes. See January 2007, March 2013, and November 2015 VA audiology evaluations. Second, exposure to hazardous noise levels in-service is established. See March 2013 VA audiology evaluation. Third, the 2017 VA specialist adequately opined that the currently diagnosed right and left ear hearing loss disabilities are related to in-service exposure to hazardous noise. The contrary medical opinions of record are not adequate as indicated above and the Board thus does not afford the opinions any weight. The criteria for service connection for right and left ear hearing loss, therefore, are met. See 38 C.F.R. § 3.303. ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs