Citation Nr: 1754864	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-07 966	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	American Legion 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Negron, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from April 1967 to May 1972, to include service in Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted hearing loss for the right ear and denied hearing loss for the left ear.  The Veteran was provided a Board hearing in September 2017 with the undersigned Judge, and a transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The probative evidence of record is at least in relative equipoise that the Veteran's currently shown left ear hearing loss originated in service or is otherwise attributable to that service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.385 (2016).







REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria 

The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence that is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence.  See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed.  Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service Connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)).  The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data).  The Court has held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Factual Analysis 

The Veteran contends that his left ear hearing loss is due to his in-service noise exposure, including participating on multiple rifle teams and duties performed as a flight operator. 

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.

The Veteran received a VA examination in April 2014.  The examiner found pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
50
55
55
50
LEFT
40
50
55
60
65

Speech audiometry revealed speech recognition ability of 70 percent in the right ear and of 66 in the left ear.  The examiner diagnosed both ears with sensorineural hearing loss.  The examiner opined that the Veteran's right ear was at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  However, the examiner opined that the Veteran's left ear was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service.  The examiner rationalized that the Veteran's service treatment records (STRs) showed the Veteran's left ear to have normal hearing at enlistment and discharge with no significant threshold shifts, while the examinations showed his right ear had a significant threshold shift at separation.  The examiner further cited to an Institute of Medicine (IOM) report that stated delayed onset of hearing loss due to noise exposure is unlikely. 

The Veteran received another VA examination in August 2014.  The examiner again diagnosed both ears with sensorineural hearing loss.  The examiner noted that the Veteran had a longstanding history of gradually progressive bilateral hearing loss.  The Veteran also reported difficulty understanding conversations.  

In September 2017, the Veteran was provided a hearing.  The Veteran testified that during service he was on multiple rifle teams and would shoot a hundred or more rounds a day.  He stated they would perform with about 50 people in a firing line all firing at the same time and therefore, having lots of noise on all sides.  The Veteran further stated that he was never provided hearing protection.  The Veteran stated that when he was in Vietnam, he was assigned also as a flight operator and therefore was always around helicopters, which were extremely loud, without hearing protection.  The Veteran stated he did hunt on his personal time after service, but always wore hearing protection.  He testified that he noticed his difficulty in hearing very shortly after service.  He further stated that his children and wife would constantly tell him to get hearing aids when he got out of service but he was too prideful to get them.  The Veteran further stated that he was right-handed and therefore, when holding his gun, the muzzle would actually be closer to his left ear. 

The Board notes that on entrance of military service, the Veteran's authorized audiological evaluation in April 1967 showed pure tone thresholds for the left ear at 500, 1000, and 4000 Hertz.  At 500 Hertz the Veteran's audiological pure tone threshold was 10, at 1000 Hertz it was 0, and at 4000 Hertz it was 0.  However, because the examination notes that thresholds were recorded using American Standards Association (ASA) units, the audiometric data will be converted to the International Standards Organization-American National Standards Institute (ISO-ANSI) standard by adding between 5 and 15 decibels to the recorded data as follows:

Hertz
250
500
1000
2000
3000
4000
6000
8000
add
15
15
10
10
10
5
10
10

Therefore, on entrance in April 1967, the Veteran had pure tone thresholds in the left ear of 25 at 500 Hertz, 10 at 1000 Hertz, and 10 at 4000 Hertz.   

The Veteran was provided another in-service audiological evaluation in October 1971 and pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
10
15
20
15

Speech audiometry revealed speech recognition ability of 100 percent in the left ear. 
The Veteran received another audiological evaluation at his discharge examination in January 1972 and his pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
25
10
5
20
15

No speech recognition testing was performed. 

Upon review of the foregoing evidence, the Board concludes that the evidence of record is at least in equipoise for a finding that the Veteran currently suffers from left ear hearing loss that is related to his military service.

The Board finds the Veteran's lay statements regarding onset of hearing loss to be credible evidence consistent with his in-service duties and experiences in service and of greater probative value than the opinion of the VA examiner of record.  See Buchanan v. Nicholson, 451 F.3d at 1335.

Further, although the April 2014 examiner found the Veteran's left ear hearing loss to not be related to his military service, the Board is placing no probative value on the examiner's opinion.  First, the VA examiner failed to consider that the Veteran's in-service examinations do show threshold shifts from entrance to discharge.  The Board finds the audiological decibels mentioned above show the Veteran's left ear hearing also worsened in-service, not just his right ear hearing as suggested by the examiner.  Second, the Board observes that the Court of Appeals for Veterans Claims (Court) has recently directed attention to the Institute of Medicine (IOM) report.  The Court provided that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure."  (IOM report at 203-04.)  The Court has directed attention to the fact that the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate to all of the pertinent aspects of its findings.  See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain).  As the April 2014 VA examiner based his opinion largely in part on the IOM report, but did not contemplate all pertinent aspects of its findings, the Board assigns low probative weight to the April 2014 VA opinion.  

Lastly, the Veteran's military personnel record has confirmed the Veteran worked as a flight operator in Vietnam and further he has already been service-connected for right ear hearing loss; therefore, his exposure to noise in service has been established.  

In light of the foregoing, the Board concludes that the evidence is at least in equipoise for the claim and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  

Accordingly, service connection is warranted for left ear hearing loss.  Therefore, the appeal must be granted. 


ORDER

Entitlement to service connection for left ear hearing loss is granted.



____________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs