Citation Nr: 1751225 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-49 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon 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 S.Wainaina, Associate Counsel INTRODUCTION The Veteran had active service from December 1986 to March 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The case has been subsequently transferred to the Portland, Oregon, RO. A videoconference hearing before the undersigned Veterans Law Judge was held in November 2013. A transcript of the hearing has been associated with the claims file. In May 2014 and November 2016, the Board remanded the Veteran's claim for additional development. The requested development was completed and the case has been returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's bilateral sensorineural hearing loss is etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000, VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). The Board is granting the claim decided herein, so further discussion of the VCAA is not merited. II. Service Connection - In General Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active 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 of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for the Federal Circuit has held that a three-element test must be satisfied in order to establish service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service connection may also be granted for chronic disabilities, such as organic diseases of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 272-73 (2015). Under 38 C.F.R. § 3.303(b), claims for service connection for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). The Veteran has been diagnosed with bilateral hearing loss. Sensorineural hearing loss is an organic disease of the nervous system under section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. Bilateral hearing loss For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2016). The Veteran's service treatment records reflect that at his June 1986 entrance examination, his auditory thresholds at the frequencies of 500 through 4000 Hertz were between 0 and 10 decibels. He denied hearing loss. Audiometric examinations were conducted in February 1987, September 1987 and February 1988. Auditory thresholds at the same frequencies were between 0 and 15 decibels. A separation examination was conducted in February 1989. The electronic results of testing showed that for the frequencies 1000 through 4000 Hertz, the auditory thresholds were between 0 and 10 decibels. The Veteran was examined by VA in May 2010. He reported hearing loss, military noise exposure (explosions and aircraft noise), no occupational noise exposure and recreational noise exposure (very little shooting). Audiometric examination revealed auditory thresholds in the left ear, at the frequencies 500, 1000, 2000, 3000 and 4000 Hertz, of 35, 30, 30, 40 and 50 decibels, respectively. In the right ear, at the same frequencies, auditory thresholds were 30, 30, 30, 40 and 55 decibels, respectively. Speech recognition scores using the Maryland CNC word list, were 94 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss. The audiologist noted that electronic testing conducted at enlistment and discharge showed the Veteran did not have hearing damage while in service (no significant threshold shift beyond normal variability). As a result, it was his opinion that the Veteran's hearing loss was less likely as not caused by or a result of noise exposure in service and more likely due to post service occupational-recreational noise exposure and/or other post service etiologies. At a June 2014 VA audiology examination, the Veteran reported military noise exposure to include weapons firing during basic training with hearing protection, as well as exposure to hydraulic equipment, diesel engine noise and helicopter noise with use of hearing protection. He denied significant occupational noise exposure. He reported recreational noise exposure to include shooting one time per ear with use of double hearing protection. In the right ear, auditory thresholds in the frequencies 500 to 4000 Hertz were 5, 10, 10, 10, and 15 decibels, respectively. In the left ear, auditory thresholds in the same frequencies were 15, 10, 15, 15 and 45 decibels, respectively. Maryland CNC word list speech discrimination scores were 94 percent in each ear. The examiner diagnosed right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies. In the left ear, the diagnosis was sensorineural hearing loss in the frequency range of 500-4000 Hertz as well as in the frequency range of 6000 Hertz or higher frequencies. The examiner concluded that there was not a permanent positive threshold shift greater than normal variability at any frequency between 500 and 6000 Hertz for either ear. She concluded that any bilateral hearing loss present was not at least as likely as not caused by or a result of an event in military service. The rationale was that entrance examination showed normal hearing levels for both ears. Separation examination also showed normal hearing in both ears with no significant shift in hearing levels during military service. The opinion was based on evidence reviewed and clinical expertise. At a December 2016 VA examination, the audiologist noted that entrance, annual and exit examinations all revealed grossly normal hearing with no significant threshold shifts documented. In the right ear, at the frequencies between 500 and 4000 Hertz, the auditory thresholds were 25, 25, 25, 20 and 40 decibels, respectively. In the left ear, auditory thresholds at the same frequencies were 20, 25, 25, 25 and 55 decibels, respectively. Speech discrimination scores using the Maryland CNC word list were 80 percent in the right ear and 72 percent in the left ear. The diagnosis was bilateral hearing loss in the frequency range of 5000 to 4000 Hertz and in the frequency range of 6000 Hertz or higher frequencies. The examiner opined that it was not at least as likely as not that the bilateral hearing loss was caused by or a result of an event in military service. The rationale was that STRs showed no hearing loss or significant changes in thresholds greater than normal measurement variability occurred during military service. The Institute of Medicine (2006 (IOM) states that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Based on the objective evidence (audiograms), there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure. As to the matter of the presence of hearing loss for VA purposes, May 2010 VA examination showed bilateral hearing loss. Examination in June 2014 showed hearing loss, within the prescribed frequencies of 500 to 4000 Hertz only in the left ear. The Veteran was diagnosed with sensorineural hearing loss at a VA examination in December 2016. Auditory thresholds in both ears at all of the specified thresholds were 40 db or greater and the speech recognition score for each ear was less than 94 percent. The first prong of the test to establish service connection has been met since December 2016. Testing results prior to that date were contradictory. As for the second prong, the Board notes that the Veteran's Form DD214 reflects that his Military Occupational Specialty was Missile Maintenance Specialist. In the December 2016 VA examination the examiner notes that the Veteran served as a Missile Maintenance Specialist and was exposed to military noise exposure. The examiner noted that although hearing protection was worn, there were many times noises started before the Veteran was prepared with plugs. In such a position the Veteran was likely exposed to acoustic trauma. The Veteran also states that his hearing loss was due to being exposed to loud noises when he was in service. 38 U.S.C.A. § 1154(a) (due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence). The RO has conceded exposure to inservice acoustic trauma. Thus, he has satisfied the second prong for service connection. As to the third prong, the December 2016 VA examiner opined that the Veteran's hearing loss was not at least as likely as not as a result of military service. Prior VA examiners have agreed, all noting that there was no significant threshold shift during service. The December 2016 VA examiner noted that the IOM had found that a prolonged delay in the onset of noise-inducted hearing loss was unlikely. Notwithstanding the lack of a medical nexus, the bilateral hearing loss claim may also be supported by evidence of continuity of symptomatology or on a chronic disease presumptive basis. To establish continuity of symptomatology, the United States Court of Appeals for Veterans Claims has held a veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question; that is, whether the relationship and disability are capable of lay observation. Savage v. Gober, 10 Vet. App. 488, 497 (1997); accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran asserts he has experienced hearing loss since service and that it continued after discharge. He is competent to report in-service and post-service symptoms of diminished hearing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). See 38 C.F.R. § 3.159(a)(2). Once the evidence is determined to be competent, the Board must determine whether the evidence is credible. The Veteran testified at his video conference in November 2013 that he was exposed to noise while in the military. The Veteran also stated in September 2007 that he was exposed to loud noises such as diesel engines, generators and loud aircraft noise. The Board has found the Veteran's contention that he has had hearing loss since service credible in light of his service as a Missile Maintenance Specialist and his testimony/statements. The Board finds that he is competent to state that his hearing loss during and since service is the cause of his current hearing loss. This militates in favor of a nexus between the Veteran's current bilateral hearing loss and any acoustic trauma during service. Resolving reasonable doubt in the Veteran's favor, the Veteran has satisfied the third prong to establish service connection. Service connection is granted for bilateral sensorineural hearing loss. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Hearing loss for VA purposes was shown in both ears in May 2010, in the left ear only in June 2014 and in both ears on VA examination in December 2016. ORDER Service connection for bilateral sensorineural hearing loss is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs