Citation Nr: 1800196 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-11 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's wife, and M.J. ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1952 to May 1954, to include service in Korea. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has been transferred to Montgomery, Alabama. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing has been associated with the claims file. 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). FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss. 2. The probative evidence of record establishes that the Veteran's bilateral hearing loss is caused by, or related to, his active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012);38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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) (2017). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, 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. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); 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. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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 (2017). It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d) (2017). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). According to the service treatment records (STRs), the Veteran underwent pre-induction and separation examinations in April 1951 and May 1954, respectively. No specific audiometric testing was administered at pre-induction or separation. The Veteran's report of separation noted that the Veteran received the Korea Service Medal, two Bronze Service Stars, the United Nations Service Medal, two Overseas Service Bars, and the National Defense Service Medal. The Veteran's most significant duty assignment is noted as a combat engineer. In November 2008 the Veteran submitted a claim for hearing loss. The Veteran stated his hearing loss is due to his service as a combat engineer in Korea. He stated that as a result of his hearing loss he was issued hearing aids by VA. A VA examination took place in December 2008 to evaluate the Veteran's claimed bilateral hearing loss. At that time, the Veteran stated that he has experienced decreased hearing since 1954. The Veteran stated that he had the greatest difficulty understanding in all listening situations. The Veteran stated that he served in the Army in Korea in a combat engineering unit where he was exposed to loud noise from heavy equipment and heavy weapon fire without use of ear protection. The Veteran stated that after separation from service his employment did not expose him to loud noise. The December 2008 examiner diagnosed the Veteran with sensorineural hearing loss in both ears. The examiner noted that both the Veteran's induction and separation hearing evaluations were conducted by a whispered voice test which was used to determine gross deviation in hearing but would miss a unilateral or high frequency hearing loss. The examiner stated that frequency specific audiometric data is needed to determine if hearing loss existed at induction and/or separation. The examiner stated that without frequency specific audiometric data at discharge, he cannot determine if hearing loss was present at discharge, without resort to mere speculation. The examiner explained that loud noise over extended periods of time can cause a high frequency hearing loss. The examiner noted that the Veteran stated that he was around loud noise in Korea in a combat engineering unit being exposed to heavy equipment and heavy artillery without the use of ear protection. The examiner stated that he could not resolve whether it is at least as likely as not that the Veteran's bilateral hearing loss was caused by or the result of military service. In the May 2009 Notice of Disagreement (NOD) the Veteran stated that immediately after discharge he was treated for hearing loss in 1959. The Veteran also stated that he did not have any employment after separation from service that exposed him to high levels of noise. He stated that the only time he was exposed to noise was during service. A VA examination took place in March 2011 to evaluate the Veteran's claimed bilateral hearing loss. At that time, the Veteran stated that he had significant noise exposure from artillery noise. He stated that he was a combat engineer in Korea for 17 months. The Veteran stated that he was in a combat zone and was exposed to equipment noise, tanks, and artillery without the use of hearing protection. The Veteran stated that prior to service and after separation he did not have employment that exposed him to noise. The March 2011 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner stated that thresholds are believed to represent true organic acuity, bilaterally. The examiner found that the Veteran's hearing was within normal limits at induction and separation according to a whispered voice test. The examiner noted that a whispered voice test cannot rule out a high frequency hearing loss or unilateral hearing loss. The examiner opined that it is less likely as not that the Veteran's military noise exposure has had any effect on his hearing loss. On the April 2011 substantive appeal, the Veteran stated that he can only attribute his hearing loss to military service. The Veteran asserted that he was granted service connection for tinnitus. He further stated that he was never exposed to high levels of noise except for during military service. The Veteran concluded that if the noise caused his tinnitus, then the noise also caused his hearing loss. A VA examination took place in February 2014 to evaluate the Veteran's service-connected tinnitus. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss but did not provide an opinion regarding its etiology. At the October 2017 Board videoconference hearing, the Veteran stated that he did not have any hearing protection during his active duty. The Veteran stated that he noticed issues with his hearing while he was serving in Korea. The Veteran stated that he has been having problems with his hearing ever since he left Korea. The Veteran's wife stated at the hearing that the Veteran has had problems hearing throughout their marriage. She stated that his hearing has gradually worsened and she must often repeat herself two to three times and speak loudly for the Veteran to hear her. The Veteran's friend M.J. stated at the hearing that he has known the Veteran since 1987. M.J. stated that he was the Veteran's supervisor and he observed that the Veteran always had issues hearing. Upon review of the record, the Board finds that the competent and credible evidence establishes a current diagnosis of bilateral hearing loss. The Board acknowledges that the Veteran served in combat during the Korean War, as evidenced by the awarding of the Korea Service Medal and two Overseas Service Bars. The Board also finds that the Veteran is competent and credible to testify to being exposed to loud noises without the benefit of ear protection and that he was, therefore, exposed to acoustic trauma in service. However, the record contains negative audiological opinions regarding the etiology of his hearing loss. In weighing the probative value of all of the VA examinations, the Board notes that the examinations were based on a thorough reading of the Veteran's STRs and VA treatment records. However, the VA examinations and opinions did not consider the Veteran's service in combat, his lack of ear protection during service, his competent and credible account of the onset of symptoms in service and their continuity thereafter, and the deficiency of the induction and separation audiological tests. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board finds that the VA opinions are not probative. In sum, the Veteran was exposed to noise in service and has a current diagnosis of bilateral hearing loss, which he has credibly reported began while he was still stationed in Korea and has continued to the present. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs