Citation Nr: 1800491	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-01 592	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

Entitlement to service connection for right ear hearing loss.  


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The Veteran served on active duty from April 1962 to April 1964.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was remanded in September 2017 for further development.  

The issues of entitlement to service connection for a left knee disability and entitlement to service connection for obstructive sleep apnea were denied by the RO in November 2017.  The Veteran has not submitted a notice of disagreement.  Consequently, the issues are not before the Board.  

The issues of entitlement to an increased rating for posttraumatic stress disorder (PTSD) and entitlement to a total disability evaluation based on individual unemployability (TDIU) were raised by the Veteran in a May 2016 correspondence.  The issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

A significant threshold shift was noted between the Veteran's entrance examination and separation examination.  It is at least as likely as not that his hearing loss is due to acoustic trauma sustained during service.  


CONCLUSION OF LAW

The criteria for an award of service connection for right ear hearing loss have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Board notes that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz 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.

The Board notes that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim.  The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Instead, as noted by the United States Court of Appeals for Veterans Claims (Court):

[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).

The service treatment records fail to reflect any findings attributable to hearing loss.  Comparing the December 1961 entrance examination with the March 1964 separation examination fails to reflect clinical hearing loss at either time:





HERTZ

Dec. 1961
500
1000
2000
3000
4000
RIGHT
-5
-5
-5
-5
-6
   





HERTZ

Mar. 1964
500
1000
2000
3000
4000
RIGHT
10
10
10
NT
10

Regarding the above results, the Board notes that these would have both been recorded under the prior audiometric standard, the American Standards Association (ASA).  

The Veteran underwent a VA examination in February 2008.  The examiner reviewed the claims file in conjunction with the VA examination.  The examiner noted that the Veteran had military noise exposure in the form of gunfire and demolition.  The Veteran denied post-service noise exposure.  The examination report reflects that right ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz were measured at 25, 25, 20, 35, and 35 respectively.  Speech recognition score was 96 percent.  The examiner noted that hearing in the Veteran's right ear was within normal limits.  Consequently, she found that it was not necessary to discussion etiology.  She found that based on the Veteran's reported history, it was at least as likely as not that his left ear hearing loss was due to service.  Since there was no documentation of tinnitus during service, she found it less likely than not that tinnitus had its origins in service.  

The Veteran underwent another VA examination in May 2010.  The examiner reviewed the claims file in conjunction with the VA examination.  The examination report reflects that right ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz were measured at 35, 35, 30, 50, and 50 respectively.  Speech recognition score was 100 percent.  The examiner did not render an opinion regarding the etiology of right ear hearing loss.  However, she opined that based on the Veteran's reported history, it was at least as likely as not that the Veteran's tinnitus was the result of military noise exposure.  

Pursuant to the Board's September 2017 Remand, the Veteran underwent another VA examination in October 2017.  The examiner reviewed the claims file in conjunction with the VA examination.  The Veteran reported that he could not hear what most people say; he could not hear the television unless the volume is loud; and that his wife gets angry because he just pretends to hear.  The Veteran reported some improvement with hearing aids that he got approximately three to four months ago.

Upon examination, the Veteran had right ear pure thresholds at 500 hertz, 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz were measured at 45, 50, 45, 55, and 65 respectively.  Speech recognition score was 84 percent.  The examiner opined that the Veteran's right ear hearing loss was less likely than not caused by an event of military service.  He explained that the December 1961 enlistment examination indicated normal hearing.  The March 1964 separation examination also indicated normal hearing.  Furthermore, he found that there was no significant change between the entrance and separation examination.  He explained that a significant change by NIOSH standards is a degradation of 15 decibels or greater.    

Analysis

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

It is undisputed that the Veteran has a current right ear hearing loss disability.  It was well documented in the Veteran's May 2010 and October 2017 VA examinations.  Moreover, in granting service connection for left ear hearing loss and tinnitus, the RO has apparently conceded exposure to excessive noise during service.  Consequently, the Board finds that the Veteran has satisfied the first two elements of service connection.

The crux of the issue is whether the Veteran's current right ear hearing loss is related to his in-service noise exposure.  The Board remanded the issue so that the Veteran could undergo a VA examination.  The October 2017 VA examiner found that it was less likely than not that the Veteran's right ear hearing loss was related to service.  However, the examiner's opinion was based on his finding that there was no significant change between the entrance and separation examination.  He further explained that a significant change by NIOSH standards is a degradation of 15 decibels or greater. 

The Board notes that upon entering service, the Veteran's auditory thresholds at 500 hertz, 1000 hertz, 2000 hertz, 3000 hertz, and 4000 hertz were -5 across the board.  Upon separation, those thresholds were +10 across the board (with the exception of 3000 hertz, which was not tested).  This represents a 15 decibel change.  By the October 2017 VA examiner's own findings, 15 decibels or greater represents a significant change.  Consequently, the October 2017 VA examiner's opinion is not reconcilable with his own rationale.  

Rather than remand the claim again, the Board finds that the Veteran is entitled to the benefit of the doubt.  As such, the Board finds that it is at least as likely as not that his right ear hearing loss (like his left ear hearing loss and tinnitus) is due to service.
 
Veterans Claims Assistance Act of 2000 (VCAA)

There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  The Board notes that an RO letter dated October 2011 informed the Veteran of the manner in which disability ratings and effective dates are assigned.  The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations.


ORDER

Entitlement to service connection for right ear hearing loss granted.  




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs