Citation Nr: 18144512 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-24 011 DATE: October 24, 2018 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Bilateral hearing loss is attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1964 to February 1967. This matter is on appeal from a March 2015 rating decision. 1. Service connection for bilateral hearing loss Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if they become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service or within the presumptive period 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. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing loss disability is defined by regulation. 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated 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 relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may 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 American Medical Association defines “acoustic trauma” as “[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire.” American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he suffers from bilateral hearing loss as a direct result of his military service. Specifically, in his May 2016 substantive appeal, the Veteran stated the onset of his bilateral hearing loss was in service due to noise exposure without hearing protection. He further noted he did not have noise exposure other than during his military service. The Veteran’s DD-214 reflects that his military occupational specialty was an Armor Crewman. The Veteran is competent to report the event that occurred during service. Layno v. Brown, 6 Vet. App. 465, 469 (1994). With respect to in-service incurrence, the Veteran has provided competent and credible lay evidence of in-service noise exposure as a result of being an armor crewman. The Board finds that the description of his in-service noise exposure is consistent with the types and circumstances of the Veteran’s military service. 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran’s service). The Veteran has reported that his hearing loss began during service and has been constant ever since that time. As such, the Board finds that the Veteran’s assertions regarding his in-service noise exposure and the onset, nature, and progression of his hearing loss are considered competent and credible lay evidence of such exposure. Therefore. the Board finds that in-service noise exposure is established by the record. See 38 U.S.C. § 1154. The Board finds that that Veteran has a bilateral hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. Specifically, in connection with his September 2014 claim, he submitted a September 2014 audiogram that revealed bilateral puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 55 75 LEFT 55 55 55 60 80 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear. Furthermore, the Veteran underwent a VA examination in March 2015 that revealed bilateral puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 40 85 LEFT 30 35 30 50 90 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 in the left ear. Both examiners diagnosed bilateral sensorineural hearing loss. Based on the September 2014 audiogram and the March 2015 VA examination, the Board finds that the element of a current bilateral hearing loss disability as defined by VA is met. See 38 C.F.R. § 3.385. With regard to the September 2014 audiogram, the examiner stated the Veteran’s bilateral hearing loss was at least as likely as not caused by or the result of service. The examiner indicated no records were reviewed, but stated that the Veteran was a member of a tank crew and on the division rifle team where he was exposed to lots of gun fire. The examiner also noted that hearing loss did not exist prior to service. Hearing loss resulted in problems communicating. With regard to the March 2015 VA examination, the examiner opined the Veteran’s bilateral hearing loss was not at least as likely as not caused by or the result of service. The examiner noted the record was reviewed; however, she noted the separation examination in September 1966 showed hearing within normal limits in both ears. Although there is a September 1966 examination of record, the date of the Veteran’s separation examination was January 1967. This separation examination is not noted on the March 2015 examination report. The examiner noted the Veteran’s entrance examination showed mild hearing loss at 6000hz in the left ear and moderate hearing loss at 6000hz in the right ear. She further noted that the separation examination showed normal hearing sensitivity in both ears. Based on this evidence, the examiner opined the Veteran’s hearing loss was a pre-existing condition that was not aggravated by service. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition 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 such service. 38 U.S.C. § 1111. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In order to demonstrate that the condition clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be undebatable. Quirin, 22Vet. App. at 396 (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The Veteran’s February 1964 entrance examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 5 0 5 15 50 LEFT 0 5 0 5 5 40 Prior to January 1967, service departments used ASA units to record pure tone sensitivity thresholds in audiometric measurement. VA currently uses ISO (ANSI) units. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 Therefore, after converting the February 1964 audiometric examination results from ASA to ISO-ANSI standards, pure tone thresholds at entry, in decibels, were shown as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 20 10 10 15 20 60 LEFT 15 15 10 15 10 50 The Court has held that a “defect” for the purposes of the presumption of soundness does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15, 28 (2016). Therefore, because the Veteran’s bilateral hearing acuity did not meet the VA definition of a hearing loss disability under 38 C.F.R. § 3.385 during his February 1964 entrance examination, the Board finds that bilateral hearing loss was not “noted” on his February 1964 entrance examination, and the Veteran is presumed to have been sound upon entrance. Furthermore, as will be discussed, the Board finds that a bilateral hearing loss disability did not clearly and unmistakably preexist the Veteran’s military service, and the presumption of soundness has not been rebutted. The Board notes the February 1964 entrance examination demonstrated some level of hearing loss at 6000 Hertz in accordance with the Court’s holding in Hensley. The March 2015 VA examiner relied upon the February 1964 audiogram result to show that the Veteran’s bilateral hearing loss pre-existed his service. The September 2014 examiner noted the Veteran’s hearing loss did not pre-exist service; however, he did not review the Veteran’s record. The evidence fails to demonstrate that the Veteran’s bilateral hearing loss clearly and unmistakably preexisted him military service. In this regard, while the February 1964 audiogram demonstrated an auditory threshold of 60 and 50 decibels at 6000 Hertz, as noted above, this result does did not rise to the level of a hearing loss disability as contemplated by 38 C.F.R. § 3.385. See McKinney, supra. There is no other evidence of record which indicated that his hearing acuity met the standards of 38 C.F.R. § 3.385 prior to his entrance to service. Therefore, the Board finds that the presumption of soundness is not rebutted, and the remaining question is whether there is a nexus between the Veteran’s bilateral hearing loss and his in-service noise exposure. The Veteran’s January 1967 separation examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 5 0 LEFT 0 0 0 10 15 Because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Therefore, after converting the January 1967 audiometric examination results from ASA to ISO-ANSI standards, pure tone thresholds at entry, in decibels, were shown as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 15 5 LEFT 15 10 10 20 20 Here, the Board finds the Veteran’s assertions regarding the onset of his bilateral hearing loss and a continuity of symptoms since service are credible. As noted above, the Veteran has confirmed his in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service. Further, the Board notes there is nothing to clearly indicate that that Veteran’s bilateral hearing loss was affected by a cause following his active duty service. He has also consistently asserted that he experienced bilateral hearing loss in-service, and that it continues to this very day, and there is no evidence in the record indicating that the Veteran’s statements are not credible. In sum, the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of left ear hearing loss since his military service, and the Board finds no reason to question the veracity of such statements. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). These statements, when viewed in relation to the Veteran’s in-service noise exposure in service, are entitled to significant probative weight, and thus, are sufficient to establish the presence of bilateral hearing loss and a likely continuity of symptomatology from service to the present. 38 C.F.R. § 3.303(b). The Board finds that the medical evidence is, at the very least, in equipoise as to whether the Veteran’s bilateral hearing loss was incurred during his active military service and resolving any reasonable doubt in favor of the Veteran, finds that the criteria for service connection for left ear hearing loss are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel