Citation Nr: 1752916	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-07 128A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from February 1965 to November 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In March 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.
 
The Board notes that the Veteran's substantive appeal was received more than sixty days following issuance of the statement of the case and greater than one year following issuance of the rating decision as to the matter being appealed.  See 38 C.F.R. § 20.302 (2017).  However, as explained in a February 2014 supplemental statement of the case, after the Veteran was provided the statement of the case, it was noted that his service treatment records contained pages that were not for the Veteran.  Thus, the Veteran requested another review and opinion after removal of the wrong medical records from the his claims file.  Following issuance of the February 2014 supplemental statement of the case, the RO certified the case to the Board.  Accordingly, the Board accepts jurisdiction of the appeal despite the untimely substantive appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal).     


FINDING OF FACT

The evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is related to active service.



CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017).    


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Legal Criteria and Analysis

The Veteran contends that he currently has bilateral hearing loss that is related to in-service exposure to field artillery.  He asserts that he noticed a negative change in his hearing acuity during and shortly after separation from active service.  Specifically, he states that he worked as line man and was responsible for running wire up to field artillery and would sit approximately three feet behind the artillery as they were fired.  See, March 2017 Board hearing transcript.  

As to the current disability element of service connection, the May 2012 VA audiological examination report includes the following audiometric findings:






HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
75
85
95
LEFT
15
35
75
80
80

In addition, the Veteran had speech recognition scores of 78 percent in the right ear and 82 percent in the left ear using the Maryland CNC word list.  The VA examination results reflect bilateral hearing loss disability for VA purposes, as the Veteran had auditory threshold of 40 dB or greater in both ears and word recognition scores below 94 percent in both ears.  Therefore, there is evidence of a current bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.

With respect to an in-service injury or disease, the service treatment records are absent for any findings of hearing loss.  However, the Veteran is competent to describe his in-service noise exposure, consisting of exposure to field artillery noise during service, as such is that which he may discern from his senses.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  Further, the Board notes that the Veteran's DD Form 214 reflects that his military occupational specialty (MOS) was field wireman.  Therefore, he is considered credible in his assertions that he was exposed to noise from field artillery during his active service as such is consistent with the circumstances of his service.  See 38 U.S.C. § 1154.  The Board finds that the element of an in-service injury, consisting of acoustic trauma, has been met.  

The question becomes whether the Veteran's bilateral hearing loss is related to his in-service injury, i.e., acoustic trauma.

The Veteran was provided a VA audiological examination in May 2012.  The May 2012 VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  During the examination, the Veteran stated that he began to notice bilateral hearing loss around 1965 to 1966, associated with his military noise exposure.  The May 2012 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss.  The examiner opined that it was "less likely as not" that the Veteran's hearing loss was caused by or a result of military noise exposure.  The examiner stated that the Veteran's hearing was within normal range at enlistment and separation.  However, as discussed in the Introduction, the Veteran's service treatment records contained records that belonged to a different service member.  It is not clear from the record whether the May 2012 VA examiner reviewed the Veteran's service treatment records or the misfiled service treatment records.  As such, the May 2012 VA opinion is entitled to no probative weight.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an incomplete or inaccurate factual premise are not probative).     

The Veteran was provided a VA addendum opinion in December 2013.  The December 2013 VA examiner reviewed the record and stated that the Veteran's full name and date of birth were verified on all documents reviewed in the service treatment records.  The December 2013 VA examiner opined that it was "less likely as not" that the Veteran's hearing loss was caused by or a result of his military noise exposure.  The examiner stated that the Veteran's hearing was within normal range at his enlistment and discharge examinations.  The Board finds that the December 2013 VA examiner's opinion is inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The examiner did not address that evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

At the March 2017 hearing the Veteran reported a history of exposure to field artillery on a daily basis.  His job was to wire the field artillery and sit approximately three feet behind the artillery as it was fired.  The Veteran further testified that he was not provided, and did not wear, ear protection.  The Veteran also testified that within several years after service he needed to ask people to repeat themselves due to his hearing loss.  Additionally, at the May 2012 VA examination, the Veteran stated that his hearing loss began around 1965 to 1966, during his active service.       

The Veteran's spouse, G. B., testified that she met the Veteran a month or two after his separation from active service.  She further testified that within the first year of separation from active service the Veteran described the noise he was exposed to and ringing in his ears.  She further testified that, in the early 1970's, several years after service, the Veteran's speech changed and he was unable to hear everything she said.

With respect to etiology, the Board finds that the evidence is in equipoise as to whether the Veteran's bilateral hearing loss is related to his active service.  While the VA examiners provided negative nexus opinions, the opinions were found to be entitled to little probative value due to the reasons articulated above.  On the other hand, the Veteran attested to the chronic nature of his bilateral hearing loss since active service, which he is competent to do and explained his in-service noise exposure in great detail.  Additionally, at the May 2012 VA examination the Veteran stated that his bilateral hearing loss began during service.  The Veteran's spouse testified to the long-standing nature of the Veteran's hearing loss, which she is competent to do.  The Board finds that the Veteran's statements and his wife's statements are competent and credible as to the chronic nature of his hearing loss since service.  See Indiana Metal Prods. v. NLRB, 442 F. 2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness.  It has been termed as the quality or power of inspiring belief ... Credibility ... apprehends the over-all evaluations of testimony in the light of its rationality or internal consistency and the manner in which it hangs with other evidence.").   

Therefore, the Board finds that the evidence of record is sufficient to show "continuous" bilateral hearing loss symptoms since separation from service.  The Veteran's consistent lay statements of bilateral hearing loss symptoms beginning in service and continuing to the present are sufficient to place into equipoise the question of whether the Veteran experienced continuity of symptomatology of bilateral hearing loss since separation from active service.  

In light of the above, the evidence is in equipoise as to whether the Veteran's bilateral hearing loss is related to his active service.  Therefore, service connection for bilateral hearing loss is granted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.    

   

ORDER

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs