Citation Nr: 1804571 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-34 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his Daughter ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to September 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran was afforded a videconference hearing before the undersigned Veterans Law Judge. 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 Veteran's bilateral hearing loss disability had its onset during his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as an organic disease of the nervous system, is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these 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. In the present case, the Veteran was diagnosed with bilateral hearing loss for VA purposes at a September 2014 VA examination. Hearing loss, as an organic disease of the nervous system, is subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). The question for the Board is whether the Veteran's hearing loss either began during active service, or is etiologically related to an in-service disease or injury. The record contains credible evidence of continuity of symptomatology related to bilateral hearing loss since discharge from service. At the December 2017 hearing, the Veteran testified that he was exposed to hazardous noise while working in the military as a firefighter. He testified that his hearing loss started when he witnessed several crashes while he was stationed at March Air Force Base. The Veteran's DD Form 214 reflects that his military occupational specialty was fire fighter. In Department of the Air Force, Headquarters Air Force Safety Center correspondence dated in December 2002, it was confirmed that the Veteran had been assigned to the 807th Air Base Group at March Air Force Base as an Air Force firefighter during the period from November 1954 to March 1957. The correspondence noted it was "very likely" that the Veteran responded as a firefighter to one of the three B-47 accidents during his tenure at March Air Force Base. The Board therefore finds the Veteran's report of exposure to hazardous noise due to witnessing crashes and his work as a firefighter to be competent and credible. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). The Veteran's description of in-service noise exposure is consistent with the known circumstances of his military service. The Veteran has asserted that he has had continuous symptoms of bilateral hearing loss since service. The Board finds the Veteran competent and credible with regard to his claim of experiencing symptoms of hearing loss in service and continuity of symptoms since service. The Veteran's July 1954 service enlistment examination report indicates the Veteran had whisper voice testing of 15/15 in both ears. No hearing problems were noted on the July 1954 examination report or July 1954 report of medical history. A March 1955 service treatment record noted limited hearing. Wax was removed from both ears. The right ear was noted to have tender and reddened drums. A July 1958 separation examination report noted whisper voice testing results of 15/15 and "Diminished hearing right ear, result of shotgun blast at close range, age 18." In a July 1958 report of medical history, the Veteran was noted to have diminished hearing in the right ear. The July 1958 separation examination report included a separation audiogram that appears to show puretone thresholds, in decibels, of 15 in the right and left ears at 500, 1000, 2000 and 4000 Hertz. As the recorded results are from prior to January 1, 1967, the Board will assume the thresholds were recorded using American Standards Association (ASA) units. Therefore, the results must be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) - 15 (20) LEFT 15 (30) 15 (25) 15 (25) - 15 (20) The results indicate some degree of hearing loss in both ears. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss"). Although the separation examination report indicates the Veteran's diminished hearing in the right ear was related to a shotgun blast at age 18, prior to his enlistment in service, no diminished hearing was noted on the Veteran's July 1954 enlistment examination report or in the Veteran's enlistment report of medical history. There is no explanation in the records for the attribution of diminished right ear hearing to a shotgun blast. The Veteran is presumed sound upon entry to service when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board finds that the Veteran was in sound condition on entry to active duty service in regard to his right ear. The Board finds the statement indicating the Veteran's diminished right ear hearing was related to a shotgun blast at age 18 is not sufficient by itself to rebut the presumption of soundness. Although the Veteran is competent to report symptoms he experiences, he has not demonstrated that he is competent to diagnose or provide an opinion as to the etiology of right ear hearing loss because the evidence does not reflect he possesses the requisite education, training, and experience to do so. There is no objective medical evidence, on the entrance examination or otherwise, that the Veteran had a preexisting right ear hearing loss. Additionally, at the December 2017 hearing, the Veteran indicated that the shotgun blast did not occur prior to his service. Accordingly, as there is not clear and unmistakable evidence to the contrary, the Board finds that the Veteran was in sound condition in the right ear on entry to active service. The Veteran's VA treatment records indicate the Veteran has had continuous hearing loss symptoms following service. A September 1968 VA examination report noted that the Veteran complained of "slight decreased hearing on the right side due to a shotgun blast. He hears all right in the left ear." A December 2011 VA treatment record noted that the Veteran was issued a set of hearing aids by VA in 1996, which had never worked well for him, so he had never used them. A March 2002 VA treatment record indicated the Veteran had severe decreased hearing. The record also noted a history of right ear hearing loss. A July 2004 VA treatment record indicated the Veteran had moderate hearing loss of the right ear and heard best with the left ear. A July 2005 VA treatment record noted the Veteran was hard of hearing. An August 2008 VA treatment record indicated the Veteran had severe hearing loss. The December 2011 VA treatment record noted audiogram test results indicated bilateral sensoneural hearing loss with good speech recognition ability. VA treatment records from 2012 through 2014 indicate the Veteran had partial hearing loss. At the Board hearing, the Veteran's daughter testified that she remembered her father always having had hearing loss. At the hearing, the Veteran's representative stated that the Veteran contends his hearing loss started while he was stationed at March Air Force Base and witnessed several crashes. The Veteran testified that he had hearing loss when he separated from service and was not around loud noise after his military career. He stated he started noticing having trouble hearing shortly after service. As lay witnesses, the Veteran and his daughter are competent to report symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran and his daughter are competent to report decreased hearing symptoms and observation of such symptoms and the Board finds their statements to be credible. Significantly, there is nothing in the record contradicting the Veteran's assertion that he has had decreased hearing since service. A September 2014 VA examiner opined that they could not determine a medical opinion regarding the etiology of the Veteran's right or left ear hearing loss without resorting to speculation. The VA examiner noted that the Veteran passed entrance and separation "whisper" hearing examinations for each ear, which are not considered valid measurements of hearing, since they are not frequency-specific and do not assess the higher frequencies. The VA examiner noted that therefore, the Veteran could have sustained some minor changes in hearing in the higher frequencies while on active duty. The VA examiner further noted that the Veterans Benefits Administration "Does not consider the "whispered voice test to have probative value. Although there have been studies done to demonstrate its validity, the test is notoriously inaccurate, subjective, inconsistently administrated, and insensitive to high-frequency hearing losses." The VA examiner could not reasonably declare what part of the Veteran's hearing loss is related to the military and what is due to another noise exposure outside of military service. The VA examiner did not address the audiological results noted on the Veteran's separation examination report. Therefore, the opinion has little probative value. In a September 2014 addendum opinion, a VA audiologist opined that it was less likely as not that the Veteran had right and left ear hearing loss that was caused by or a result of military noise exposure. The VA audiologist stated that the audiogram is the objective standard for noise injury, and because the Veteran's hearing was normal at separation with no significant threshold shifts having occurred during active duty service, there is no evidence the Veteran's military noise exposure caused a permanent noise injury. The Board finds the addendum opinion is inadequate. As noted above, when converted to ISO-ANSI units, the separation examination results do not indicate the Veteran's hearing was normal. The VA examiner did not indicate whether the results were converted. In addition, since the Veteran had whispered voice testing at entrance to service, it unclear how the VA examiner found there were no significant threshold shifts in service, particularly as diminished right ear hearing was noted in the separation examination report. Further, the VA examiner did not address the Veteran's assertion that he has had continuous symptoms of hearing loss since service. Accordingly, the September 2014 opinion and addendum opinion have little probative value. There are no other medical opinions of record. In conclusion, the Veteran has been diagnosed with bilateral hearing loss, and was exposed to hazardous noise in service. The August 1955 service treatment record noted the Veteran had limited hearing. The Veteran's separation examination report appears to reflect some degree of hearing loss in both ears, and specifically noted diminished hearing in the right ear. The Board finds the Veteran's statements that he has been experiencing hearing loss continuously since his discharge from service to be competent and credible. The Veteran's VA treatment records and the Veteran's daughter's testimony support the Veteran's assertion that he has experienced diminished hearing since service. Although the records show the Veteran reported having worse hearing in his right ear, they also indicate that he had diminished hearing in both ears. Therefore, the Veteran's statements regarding continuity of hearing loss symptoms since service have significant probative value. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for bilateral hearing loss pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs