Citation Nr: 1805605	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-17 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from January 2004 to April 2012.

 This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2015 the Board remanded this issue for additional development.

The issue of entitlement to service connection for vision problems and headaches, as secondary to service-connected tinnitus has been raised by the Veteran in his March 2013 notice of disagreement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b) (2017).


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, he has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure.


CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations

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).

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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities is through a demonstration of continuity of symptomatology.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).

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, 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 Tests are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Factual Background and Analysis

The Veteran has claimed that he has a hearing loss related to service.  He argues that he was exposed to loud noises while deployed in Iraq.  Service personnel records reflect that the Veteran was deployed to Iraq twice.  As a result, the Board finds that in-service noise exposure is conceded.

The Veteran's service treatment records are negative for findings of bilateral hearing loss.

Audiometric testing on the Veteran's August 2003 pre-enlistment examination revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



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


Audiometric testing on the Veteran's January 2004 enlistment examination revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



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


Audiometric testing on a January 2005 examination revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



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




Audiometric testing on the Veteran's July 2008 examination revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
0
15
LEFT
15
0
5
0
15


While still in service, the Veteran underwent a VA examination in November 2011.  

Audiometric testing in November 2011 revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
15
15
LEFT
10
5
5
10
15

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.  

The November 2011 examiner noted that the Veteran was still on active duty and that he reported that he was routinely exposed to significant noise throughout his military service.  The Veteran also reported symptoms of decreased hearing.   The examiner noted that the Veteran did not have measurable hearing loss according to VA standards but the results may suggest a change in the Veteran's hearing acuity relative to their initial baseline thresholds, or the hearing loss may exist at frequencies not tested for the evaluation which may result in a decreased ability to understand speech in certain environments.  The subjective factors were difficulty understanding speech in certain environments while the objective factors were conceded exposure to significant noise in his duty assignments during military service.  The examiner again noted that while the Veteran did not have measurable hearing loss for VA standards, this did not preclude that the Veteran had difficulty understanding conversational speech or that a change had occurred in hearing thresholds.  The examiner did opine that it was at least as likely as not that the Veteran's tinnitus was related to the acoustic trauma he was exposed to during his time in the military service.

Per the December 2015 Board remand instructions, the Veteran underwent a VA examination in March 2016.

Audiometric testing in March 2016 revealed pure tone thresholds, obtained by air conduction, in decibels, as follows: 




HERTZ



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

Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 92 percent in the left ear.  

The examiner noted that the Veteran received treatment in August 2009 for a head injury and that the Veteran had combat in Iraq where he was exposed to heavy artillery fire which resulted in noise exposure being conceded.  The examiner also noted that a November 2011 VA examination which served as a separation examination demonstrated normal hearing bilaterally.  The examiner diagnosed the Veteran with normal bilateral hearing.  The examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of a military event in service.  The examiner noted that for the frequencies from 500Hz to 4000Hz, a comparison of the January 2004 baseline audiogram with the November 2011 separation audiogram did not demonstrate a significant threshold shift for either ear and there was no worsening hearing.  The examiner indicated that the only frequency which showed a potential for deterioration was the 6000Hz frequency although this shift was "temporary in nature and not significant".  The examiner noted that the November 2011 examination indicates normal hearing at separation "thus ruling out service connection for hearing loss that develops later based on the current scientific knowledge of auditory physiology."  The examiner stated that an audiogram that indicates normal hearing at separation and no indication of a significant threshold shift throughout military service further supports the opinion that the current hearing loss was not service connected.  The Veteran further had discrimination scores which were normal on his separation examination which was conducted two years after his head injury.  The examiner noted that there was no nexus to relate the current discrimination scores to his August 2009 head injury.  The examiner also noted that since his active duty, the Veteran has worked in computers and also did not have any noisy hobbies.  

The record shows that the Veteran currently has bilateral hearing loss for VA compensation purposes.  Notably, hearing loss for VA compensation purposes was demonstrated on the March 2016 VA examination as the Veteran had Maryland CNC word recognition scores of 86 percent (right) and 92 percent (left).  The first element of evidence of a current disability is accordingly met. 

Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss disability is associated with the Veteran's active duty.  In this regard, the Board acknowledges that service treatment records are negative for complaints of, treatment for, or findings of hearing loss.  However, when considering the circumstances of the Veteran's service, he was undoubtedly exposed to some noise in service.  

After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for bilateral hearing loss is warranted.  In support of this conclusion, the Board notes that the Veteran's conceded in-service noise exposure was sufficient to result in a grant of service connection for tinnitus in an April 2012 rating decision which was based on the positive nexus opinion of the November 2011 VA examiner who expressly conceded in-service noise exposure.

The Board acknowledges that the March 2016VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or the result of his military service.

The Board again notes, however, that the April 2012 rating decision granted service connection for tinnitus based on the findings of the November 2011 VA examination which concluded that the Veteran's tinnitus was caused by his military noise exposure.  While the November 2011 VA examiner specifically indicated that the Veteran did not meet the criteria for hearing loss at the time and therefore did not provide an etiology opinion, he did note that the results the results may suggest a change in the Veteran's hearing acuity relative to their initial baseline thresholds.

Additionally, the negative nexus opinion that was provided by the March 2016 VA examiner appears to be based in part on the absence of documented hearing loss disability in the Veteran's service treatment records as the examiner specifically noted that the November 2011 examination indicates normal hearing at separation "thus ruling out service connection for hearing loss that develops later based on the current scientific knowledge of auditory physiology."  The absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Moreover, the Board again notes the April 2012 decision which granted service connection for tinnitus which was based on the positive nexus opinion of the November 2011 VA examiner.  The fact that the Veteran has been diagnosed as having tinnitus as a result of his in-service noise exposure and granted compensation for tinnitus adds to the credibility of the Veteran's contention that his bilateral hearing loss disability is related to service because "an associated hearing loss is usually present" with tinnitus.  The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems.  Further, tinnitus may occur as a symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss.  Id. With regard to the latter, the evidence of record reflects that the Veteran's tinnitus is noise-induced, i.e., a result of his exposure to acoustic trauma during service.  In this regard, the Board notes that "high frequency tinnitus usually accompanies [noise-induced] hearing loss." The Merck Manual, Section 7, Ch. 85, Inner Ear.

The Board also notes that the Veteran has demonstrated reports of continuous bilateral hearing loss symptoms since his separation from service.  Notably, the Veteran presented with reports of hearing loss on his November 2011 separation examination as well March 2014 claim for bilateral hearing loss.  While a bilateral hearing loss disability for VA purposes was not actually diagnosed until 4 years after service, the Board finds the Veteran's assertions of continuity of hearing loss since service both competent and credible.  

Additionally, while the March 2016 VA examiner opined that the Veteran's hearing loss was not a result of in-service noise exposure, she noted that the Veteran had been deployed twice to Iraq where he was exposed to explosions, heavy artillery fire and frequent "hell fire" in which the units would shoot down incoming mortars from the enemy.

As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran had a current bilateral ear hearing loss disability that was caused by his service.

In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for bilateral hearing loss is granted.  See 38 U.S.C. § 5107(b).


ORDER

Entitlement to service connection for bilateral hearing loss is granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs