Citation Nr: 1806722	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  12-18 188	)	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:	The American Legion


ATTORNEY FOR THE BOARD

R. Behlen, Associate Counsel



INTRODUCTION

The appellant served on active duty in the Air Force from June 1960 to March 1964.  He is the recipient of the Air Force Good Conduct Medal.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  After reopening the claim upon receipt of new and material evidence, the Board remanded this matter in September 2016.  A Supplemental Statement of the Case (SSOC) was issued in July 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 is in equipoise as to whether the appellant's current bilateral hearing loss is causally related to noise exposure during his active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b) (1).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision.

II.  Applicable Law

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service."  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  "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"- the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for certain chronic diseases, including an organic disease of the nervous system like sensorineural hearing loss, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  See also Hensley v. Brown, 5 Vet. App. 155 (1993).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran."  See Gilbert, 1 Vet. App. at 54.

III.  Background

The appellant contends that his current bilateral sensorineural hearing loss is the result of military noise exposure while on active duty.  Although on other occasions, the RO has noted that the appellant's military occupational specialty (MOS), Organizational Supply Specialist, had a low probability of exposure to hazardous noise, military noise exposure was conceded by the RO in a June 2012 rating decision which granted service connection for tinnitus.

Further, the appellant has competently reported exposure to loud noises while on active duty.  He explained that, as an Organizational Supply Specialist, he worked right on the flight lines.  His office was in a hangar on the flight line.  While stationed at Otis Air Force Base, his duties put him onto the flight lines and tarmacs even when aircraft were ready for takeoff.  Unlike the mechanics, however, he was not afforded hearing protection.  

Buddy statements from R.K. and M.S., friends of the appellant since before his active service, report observations of the appellant experiencing hearing problems following service.

The appellant's June 1960 enlistment examination shows that the appellant's hearing acuity was normal as measured by whispered voice testing.  The service treatment records also contain an interpreted July 1960 audiogram which appears to show hearing acuity of 40 to 50 decibels at 6000 Hertz.  The remaining tested frequencies appeared to show hearing acuity within normal limits.  

The appellant's hearing hearing was again tested during his January 1964 separation examination with a Rudmose audiometer, which revealed:




HERTZ



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

As such was conducted prior to January 1, 1967, the results were presumably reported in American Standards Association (ASA) units.  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 International Standards Organization-American National Standards Institute (ISO-ANSI) standard by adding between 5 and 15 decibels to the recorded data as follows:




HERTZ



500
1000
2000
3000
4000
add
15
10
10
10
5

The converted results are reported in brackets above.

Service treatment records are otherwise negative for complaints, observations, diagnoses, or treatment for hearing loss.  While the appellant previously reported experiencing earaches prior to service, he denied experiencing, or having experienced, ear, nose, or throat trouble on his January 1964 Report of Medical History.

In October 2010, Dr. K.D. reported that he conducted a thorough ear, nose, and throat examination of the appellant and a thorough review of the appellant's audiogram and opined that the appellant's sensorineural hearing loss was the result of noise-induced trauma while on active duty.  However, no rationale was offered.

A May 2012 VA examiner opined that the appellant's hearing loss was less likely than not caused by or the result of his active service.  As noted by the Board in the September 2016 remand, such opinion relied in significant part on a 2005 study by the Institute of Medicine (IOM), which concluded that medical knowledge at that time did not support delayed-onset hearing loss following military noise exposure, while additional, contrary studies have been published since such time.  The Board explained that such opinion was inadequate because a more recent series of papers, published by Dr. Sharon Kujawa at the Department of Audiology, Massachusetts Eye and Ear Infirmary, cast doubt on such 2005 IOM study, and that Dr. Kujawa's findings were not discussed by the examiner.

A November 2016 VA examiner noted that the appellant had no civilian occupational exposure to loud noises; rather, he worked as a mail clerk, banker, and computer programmer following separation.  Recreational noise exposure included unprotected carpentry and hunting, and protected target shooting.

The November 2016 VA examiner also offered a negative etiological opinion, which, was also based, in significant part, on the 2005 IOM study.  Again, Dr. Kujawa's findings were not discussed.  The examiner also opined that the appellant had preexisting hearing loss, based upon the July 1960 uninterpreted audiogram, which showed impaired hearing at the 6000 Hz level.  The examiner opined that such was not aggravated beyond the natural progression by the appellant's active service.  

IV.  Analysis

After considering the record, the Board finds that service connection for bilateral hearing loss is warranted.  

First, the record clearly establishes that the appellant has a current hearing loss disability in accordance with VA regulations.  Pure tone threshold testing performed during the November 2016 VA examination revealed:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
45
80
90
LEFT
20
15
45
75
85

The 1000-4000 Hertz average was 59 decibels in the right ear and 55 in the left.  Speech recognition using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left.  He was diagnosed with bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz.  There is no dispute that the appellant has a current diagnosis of bilateral sensorineural hearing loss.  Thus, the first element needed to award service connection has been met.  

Second, the record establishes that the appellant sustained acoustic trauma during active duty.  The appellant is competent to report his exposure to loud noises during his active service.  The Board finds such statements to be credible.  Thus, the second element needed to award service connection has been met.  

As set forth above, the third element necessary to award service connection is a nexus between the appellant's current hearing loss and his in-service acoustic trauma.  To determine whether that element has been met, the Board has carefully considered the medical opinion evidence of record.  

All medical opinions of record exhibit some deficiencies.  The October 2010 positive opinion from Dr. K.D. offers no rationale for the conclusion that the appellant's hearing loss was the result of his active service.  

The May 2012 examiner relied on the 2005 IOM study but did not address more recent findings by Dr. Kujawa, prompting the Board to determine that the opinion was inadequate and remand the matter for an additional medical opinion.  Unfortunately, the November 2016 opinion obtained pursuant to that remand is of limited probative value.  

First, like the May 2012 opinion, it relies on the 2005 IOM study and fails to address Dr. Kujawa's findings.  In addition, it is premised on the appellant having had preexisting hearing loss at 6000 Hz prior to his active service.  As set forth above, however, the appellant's hearing acuity was determined to be normal on service entry.  Absent a notation of hearing loss on service entry, the legal presumption of soundness attaches.  Crowe v. Brown, 7 Vet. App. 238 (1994).  

Thus, the burden of proof would be on VA to rebut the legal presumption of soundness.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) the disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VA O.G.C. Prec. Op. No. 3-2003.  This burden is a formidable one, requiring that the preexistence of a condition and the no-aggravation result be "undebatable."  See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); see also Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).  

In this case, the November 2016 VA examiner failed to explain how an audiogram conducted during active duty could clearly and unmistakably establish the existence of hearing loss prior to service.  Under these circumstances, VA has not met its formidable burden and the presumption of soundness is not rebutted.  Therefore, the notation of hearing loss at 6000 Hertz must be presumed to have been incurred in service.  

In light of the foregoing, and because all of the available medical opinions in this case exhibit some deficiency which decreases their probative value, the Board has assigned equal weight to the positive and negative medical opinions.  In weighing such opinions, in conjunction with the appellant's competent and credible lay statements that he has experienced hearing loss since his active service, the Board finds that the evidence is in relative equipoise as to whether the appellant's current bilateral hearing loss is due to military noise exposure.  As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  Given the evidence set forth above, such a conclusion certainly cannot be made in this case.  Under these circumstances, the record is sufficient to award service connection for bilateral hearing loss.


ORDER

Entitlement to service connection for bilateral hearing loss is granted, subject to the law and regulations governing the payment of monetary benefits.




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs