Citation Nr: 1801278	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  16-16 451	)	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:	The American Legion


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney


INTRODUCTION

The Veteran served on active duty from August 1956 to December 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
 
The issue of entitlement to service connection for tinnitus has been raised by the record in a December 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

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 evidence of record shows that the Veteran's current bilateral hearing loss disability had its onset during his active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss disability have been met.  38 U.S.C. §§ 1131, 5103, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 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 - Service Connection

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.  To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303 (b).  For purposes of 38 C.F.R. § 3.303(b), only the conditions listed in 38 C.F.R. § 3.309 (a) are considered chronic.  38 C.F.R. § 3.307 (a).  The list of chronic conditions includes hearing loss, as an organic disease of the nervous system.  See 38 C.F.R. § 3.309(a).

For the purposes of applying the laws administered by VA, 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 (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).


Service Connection - Bilateral Hearing Loss

The Veteran contends that he currently has bilateral hearing loss that is related to in-service exposure to noise from jet aircraft in service.  He asserts that his hearing loss began in service and he first sought treatment for his bilateral hearing loss in 1990.  Specifically, he states he was a flight deck mechanic and was exposed to aircraft noise, which caused his bilateral hearing loss.  Additionally, he asserts that after separation from active service he was employed by AT&T and was not exposed to any hazardous noise.  See, e.g., Statement is Support of Claim received June 2015.  The Board notes that the Veteran's DD 214 reflects that he was a jet aircraft servicer.  Therefore, he is considered credible in his assertions that he was exposed to noise from jet engines during his active service.  See 38 U.S.C. § 1154.

As to the current disability element of service connection, the March 2015 VA audiological examination report includes the following audiometric findings:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
30
35
50
55
LEFT
65
60
60
60
65

In addition, the Veteran had speech recognition scores of 92 percent for the right ear and 38 percent for the left ear using the Maryland CNC word list.  The VA examination testing results reflect bilateral hearing loss disability for VA purposes, as the Veteran had auditory thresholds 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.

A review of the Veteran's service treatment records reveals that he scored 15 out of 15 on whispered voice tests on medical examination in August 1956 and December 1959.  The Veteran's service treatment records also include an audiometric test conducted in December 1956 with the following puretone thresholds:







HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
-5
LEFT
10
5
5
0
0

VA currently uses ISO (ANSI) units to measure hearing thresholds.  It is unclear whether the Veteran's December 1956 audiometric test was measured in ISO or ASA units.  However, as the hearing test was conducted prior to 1967, the Board will assume that the audiometric test was conducted using ASA units.  As such, when converted to ISA units, the Veteran had the following threshold readings:





HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
10
0
LEFT
25
15
15
10
5

Although such audiometric readings do not demonstrate bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385, they do indicate left ear hearing loss, as the Veteran had an audiometric reading of 25 db at 500 Hz.  See Hensley, 5 Vet. App. at 159.  

The Board notes that whispered voice tests are notoriously subjective, inaccurate, and insensitive to types of hearing loss and cannot be considered as reliable evidence that hearing loss was or was not present.  See VA Adjudication Procedure Manual M21-1, Part III, Subpart iv, Chapter 4, Section B, Subsection 4, Paragraph g.  Nevertheless, the whispered voice testing conducted at the August 1956 medical examination for induction into active service provides the only medical evidence as to the Veteran's hearing acuity at entrance into service.  As such, the Board concludes that the score of 15 out of 15 on the whispered voice test conducted in August 1956 demonstrates that the Veteran did not have hearing loss upon entrance into service.  Accordingly, the Board finds that the service treatment records reflect that the Veteran developed left ear hearing loss during service, as evidenced by his score of 15 out of 15 on the whispered voice test on entrance and a puretone threshold of 25 dB at 500 Hz in his left ear in December 1956.  Additionally, the December 1956 audiological examination reflects a shift in the Veteran's right ear hearing as compared to his induction examination where the Veteran exhibited 15 out of 15 on the whispered voice test.  

The Veteran has reported that, as a civilian, he worked for AT&T and was not exposed to excessive occupational noise.  Furthermore, he reported no recreational noise exposure.  The record does not otherwise show that there are intercurrent causes since the Veteran's separation from active service to which the current bilateral hearing loss may clearly be attributed.  Therefore, subsequent manifestations of the in-service hearing loss, to include the current bilateral hearing loss, are considered service connected.  38 C.F.R. § 3.303 (b), 3.309 (a).

The Board acknowledges that the March 2015 VA audiological examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of his active service.  As rationale for that opinion, the examiner noted there is no objective evidence in the service medical records to support the Veteran's contention that his bilateral hearing loss had its onset during active service.  However, the Board does not afford weight to the examiner's opinion because, as noted above, the Veteran's December 1956 left ear threshold at 500 Hz, when properly converted to ISO units, reflects left ear hearing loss under relevant case law.  Additionally, the December 1956 right ear hearing test, when properly converted to ISO units, reflects a significant threshold shift.  Therefore, the examiner's finding that the Veteran had normal hearing throughout his active service is contrary to the evidence, and the opinion is not entitled to probative weight.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative).

In summary, the evidence of record shows that the Veteran's current bilateral hearing loss had its onset during his active service and is therefore service connected.  See 38 C.F.R. §§ 3.303 (b), 3.309 (a).  Any remaining doubt is resolved in the Veteran's favor, and the Board therefore concludes that service connection for bilateral hearing loss must be granted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.     
 
ORDER

Entitlement to service connection for bilateral hearing loss disability is granted




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



Department of Veterans Affairs