Citation Nr: 1752965	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  12-33 871A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Becker, Counsel







INTRODUCTION

The Veteran served on active duty from March 1966 to March 1968.  The included service in the Republic of Vietnam, for which he earned numerous decorations including a Combat Infantryman Badge (CIB) and a Purple Heart.  

This current matter comes before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  In pertinent part, this rating decision denied service connection for bilateral hearing loss and for tinnitus.  The Veteran appealed these determinations.  

A hearing was scheduled for April 2014.  However, the Veteran failed to appear for the scheduled hearing.  He also did not thereafter show good cause for not appearing under such circumstances that a timely request for postponement was impossible.  As such, this matter proceeds as if the request had been withdrawn.  38 C.F.R. § 20.704(d).  In February 2015, the Board granted service connection for tinnitus.  Service connection for bilateral hearing loss, which accordingly is the sole remaining issue on appeal, was remanded for additional development.  Review of the claims file at this time shows that adjudication concerning it now may proceed.  


FINDING OF FACT

Affording the benefit of the doubt to the Veteran, his bilateral hearing loss is related to his exposure to loud noise during service.


CONCLUSION OF LAW

The criteria for establishing service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1153, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85, 4.86 (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

Before addressing the merits, VA has duties to notify and to assist regarding a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Discussion in this regard is not necessary, however, because service connection for bilateral hearing loss is granted herein.  This determination is fully favorable in that the sole benefit sought by the Veteran is granted.  It follows that any errors made in satisfying the aforementioned duties were harmless.  The same is true for any errors made in complying with the Board's February 2015 remand.  Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998).  

II.  Service Connection

Service connection means that the facts, shown by the evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Direct service connection requires a current disability, incurrence or aggravation of an injury or disease during service, and a nexus between them.  Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Direct service connection also may be established for any disease diagnosed after separation from service if it was incurred during service.  38 C.F.R. § 3.303(d).  

For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service.  Id.; Savage v. Gober, 10 Vet. App. 488 (1997).  A rebuttable presumption of service connection exists for chronic diseases when a veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service.  38 U.S.C. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309.  
Only the most salient evidence must be discussed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  Persuasive or unpersuasive evidence must be identified, and reasons must be provided for rejecting favorable evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence may be discounted in light of its inherent characteristics and relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

A current disability must be present near or at the time a claim is filed or at any time during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007).  The Veteran first mentioned hearing loss in December 2008 and submitted a claim for bilateral hearing loss in May 2009.  Bilateral sensorineural hearing loss was diagnosed at a May 2009 private medical examination and at VA medical examinations in May 2010 and April 2015.  Hearing loss is a disability when the pure tone threshold at any frequency from 500 to 4000 Hertz is 40 decibels, this threshold at three of more such frequencies is 26 decibels or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  At all of the aforementioned examinations, this was true for both of the Veteran's ears.

Bilateral hearing loss is a chronic disease because it is an organic disease of the nervous system.  38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a).  Yet the Veteran does not contend that he manifested bilateral hearing loss to a compensable degree between March 1968 when he separated from service and March 1969.  No medical evidence dated during this timeframe exists.  Without it, there is no diagnosis and no way to ascertain, even absent a diagnosis, the level of any hearing loss that may have existed.  Pure tone thresholds, along with speech recognition scores, indeed are required to determine if bilateral hearing loss is severe enough to merit even the lowest compensable rating of 10 percent.  38 C.F.R. §§ 4.85, 4.86.  

Service connection therefore cannot be presumed, despite the Veteran's qualifying service.  Service connection instead must be established.  Except for any defects noted, a veteran is presumed to be in sound condition upon entrance into service.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Noted means only defects that are identified upon examination.  38 C.F.R. § 3.304(b).  At the Veteran's September 1965 pre-induction examination, pure tone thresholds were obtained twice.  The recorded numbers presumably (given the time) are in the old American Standards Association (ASA) units.  They are converted to the current International Standards Organization - American National Standards Institute (ISO-ANSI) units herein to facilitate data comparison.  This is achieved by adding 5-15 decibels to what was recorded as follows:


Hertz
250
500
1000
2000
3000
4000
6000
8000

15
15
10
10
10
5
10
10

With conversion, the Veteran's pure tone thresholds were as follows:

Hertz
500
1000
2000
3000
4000
6000
Right 
25
20
20
20
15
20
Left
25
20
20
20
15
20


Hertz
500
1000
2000
3000
4000

10
-5 or 0 (original number unclear) 
0
Not tested
5

20
5
10
Not tested
10

Normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155 (1993).  As such, the Veteran's hearing was normal with the exception of at 500 Hertz bilaterally on one test at his pre-induction examination.  It is unclear why two tests were performed when no problem had been detected.  It also is unclear why the results are different, albeit only marginally.  In any event, the test most favorable to the Veteran will be used herein.  This test is the latter of the two set forth above, conveying entirely normal hearing.  Indeed, the Veteran was assigned a score of 1 for the H in PULHES to signify his high level of fitness for hearing.  
The presumption of soundness thus is for application.  This means that incurrence, not aggravation, of an injury or disease during service is relevant.  For incurrence of a disease, service treatment records are silent for complaints, treatment, or diagnosis related to hearing loss.  Pure tone thresholds were obtained at the Veteran's December 1967 separation examination.  It is unclear what units the recorded numbers are in, so both have been considered.  Assuming they were recorded in ASA units and converting them to ISO-ANSI units is most favorable to the Veteran.  These converted numbers therefore are used herein.  They are as follows:

Hertz
500
1000
2000
3000
4000
Right
20
15
15
Not tested
15
Left
20
15
15
Not tested
15

The Veteran once again was assigned a score of 1 for the H in PULHES to correspond with his normal hearing.  In February 1968, he indicated that there had been no change in his condition since the examination.

Regarding the incurrence of an injury during service, satisfactory lay evidence of such during combat will be accepted if consistent with the circumstances, conditions, or hardships of combat service even if there is no official record.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d).  The Veteran contends that he was exposed to loud noise while engaging the enemy.  It is reiterated that, per service personnel records, he earned a CIB and a Purple Heart for his service in Vietnam.  His combat during a period of war is confirmed, in other words.  Exposure to loud noise to include from gunfire is entirely consistent with such service.  Indeed, the Board conceded this point in granting service connection for tinnitus.  

Hearing loss, in sum, was not chronic or even noted during service.  Although a relevant disease was not incurred during service, a relevant injury was incurred then.  The Veteran contends this injury of loud noise exposure caused his current bilateral hearing loss disability.  He is a lay person because there is no indication he has any medical background.  A lay person sometimes can provide a competent nexus opinion.  Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  However, this is not one of those times.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Whether there is a nexus here indeed is a question for a medical professional because of the complexities involved.  These include the number of years that have passed since the Veteran's service and the number of possible etiologies for bilateral hearing loss.  

Only two medical opinions concerning nexus exist, and only one of these is adequate for use herein.  The May 2009 private medical examination did not include any opinion.  The May 2010 VA medical examination included an opinion against service connection because hearing loss was not detected during the Veteran's service and his hearing was normal upon his separation.  As explained in the Board's February 2015 remand, this opinion runs counter to well-established caselaw.  Hearing loss during service, and thus at separation, is not required.  Ledford v. Derwinski, 3 Vet. App. 87 (1992).  All that is required is a medically sound basis for attributing a current hearing loss disability to an injury of loud noise exposure during service.  Hensley, 5 Vet. App. at 155.  

Though hearing loss is not disabling during service, a threshold shift signifying a worsening of hearing then is of import in this regard.  Id.  The April 2015 VA medical examination included an adequate opinion against service connection.  This conclusion was made in part because the Veteran's hearing was normal during service and no threshold shift of significance was found then.  However, there was no discussion concerning unit conversion for the numbers recorded on the pre-induction and separation examinations.  Several threshold shifts from 5 up to 15 decibels are evident when taking into account conversion (as discussed above).  The Board cannot comment on their significance.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Yet, they are notable.

The last basis for the aforementioned opinion was a quotation from a relevant Institute of Medicine study sponsored by VA.  It discussed how little research directly on point was available, but that all research suggests a delay of many years in the onset of hearing loss following loud noise exposure is extremely unlikely.  However, it then discussed how an individual's awareness of the effects of on hearing may be considerably delayed after loud noise exposure.  It was noted that young individuals with a slight noise-induced hearing loss, one not likely to cause much difficulty with communication, at separation likely exhibit greater hearing loss as they age than young adults with normal hearing at separation.  

Next, an example was given.  A slight hearing loss of 20 to 30 decibels in a young individual compared with the same amount of hearing loss associated with aging becomes a moderate loss of 40 to 50 decibels.  This amount was identified as often sufficient to interfere with communication, and thus may make the individual more aware of the effects of earlier noise-induced hearing loss.  Indeed, he or she has approximately twice as much hearing loss in comparison to same-aged peers without earlier noise-induced hearing loss.  It follows that some amount of the current hearing loss, which now is a disability, is attributable to long ago exposure to loud noise in this example.  This appears true for the Veteran as well.  He had a slight hearing loss of 20 decibels at 500 Hertz at his separation examination even though he denied having any ear, nose, and throat trouble.

The rationale for the opinion contained in the April 2015 VA medical examination, in sum, supplies a medically sound basis for attributing the Veteran's current hearing loss disability to his injury of loud noise exposure during service.  Yet, the opinion itself is against service connection.  The positive and negative evidence on nexus is in approximate balance, in other words.  As such, the Veteran is afforded the benefit of the doubt on this point.  Service connection for bilateral hearing loss is granted because all of the criteria for establishing this benefit on a direct basis - current disability, incurrence of an injury during service, and nexus have been met.

ORDER

Service connection for bilateral hearing loss is granted.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs