Citation Nr: 1806762 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-07 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1967. Among other awards, the Veteran received the National Defense Service Medal and Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran and his wife testified before the undersigned Veterans Law Judge at an August 2016 videoconference hearing. A transcript of this hearing is of record. The Board previously remanded this claim for additional development in November 2016. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to his active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria to establish entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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, 1131; 38 C.F.R. §§ 3.303, 3.304. 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). Organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of the 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 shows 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"). 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. Service department audiometric readings prior to January 1, 1967 must be converted from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, 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. Also, with regard to audiometric data between January 1, 1967 and December 31, 1970, the Veteran had an audiograms in July 1967; however, because it is unclear whether the July 1967 audiogram threshold was 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. Thus, after December 31, 1970, the Board assumes the ISO-ANSI standard was used and no conversion is needed. 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 The United States Court of Appeals for Veterans Claims (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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that he was exposed to acoustic trauma during service. 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). On the August 1964 entrance examination, audiological evaluation revealed that puretone thresholds, in decibels, as converted to the ISO-ANSI units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 Not recorded 0 LEFT 20 15 0 Not recorded 10 On the July 1967 separation examination, audiological evaluation revealed that puretone thresholds, in decibels, as converted to the ISO-ANSI units, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 Not recorded 15 LEFT 25 20 20 Not recorded 10 Post-service, in October 2011, the Veteran had a private audiological evaluation and was diagnosed with hearing loss that began in military service. An undated letter of appreciation addressed to the Veteran that was received in November 2011, indicated that the Veteran's unit bore extremely hazardous conditions, including the constant threat of mortar attacks, where claymore mine were frequently exploded and personnel laden vehicles were bombed. In June 2012, the Veteran underwent a VA disability benefits questionnaire (DBQ) for hearing loss. The examiner reviewed his claims file. An audiogram revealed bilateral hearing loss per 38 C.F.R. § 3.385. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss from 500 Hertz to 4000 Hertz. The VA examiner opined that the Veteran's current bilateral hearing loss was less likely as not caused by or a result of military noise exposure. Noting that the Veteran had reported experiencing in-service noise exposure from mortar explosions and weapons fire while in basic training and serving in Vietnam, the VA examiner found that the Veteran had a low probability of noise exposure based on his military occupational specialty (MOS) as a clerk. In addition, the VA examiner found that the Veteran had normal hearing at entrance and separation from service. On that basis, the VA examiner identified that there was a strong possibility that the Veteran's enlistment examination audiometric test results had been based on ASA calibration due to the 1964 date; however, the VA examiner did not discuss whether she had also found that the Veteran's July 1967 separation examination had also reported the Veteran's audiometric test results using the ASA measurement standard. The VA examiner concluded that the Veteran's pattern of hearing loss was not consistent with a noise-only hearing loss. Finally, in summarizing the Veteran's history of post-service occupational noise exposure and the Veteran's report that the onset of his hearing loss occurred in the 1990's, the VA examiner determined that presbycusis (defined as a progressive, bilaterally symmetric sensorineural hearing loss occurring with age, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1511 (32nd ed. 2012)) and non-military noise exposure could not be ruled out as major contributing factors in the Veteran's current hearing loss. However, at the Board hearing, the Veteran's wife testified that she noticed his hearing had decreased as early as 1973 and 1975 when their children were born; she indicated that the Veteran said he could not hear the babies crying. A November 2016 Board remand found the June 2012 VA DBQ for hearing loss was inadequate as the VA examiner disregarded the Veteran's statements that he was exposed to hazardous noise during service, the examiner found that the Veteran had a low probability of noise exposure based on his MOS as a clerk, and the VA examination report did not provide the audiometric test results for the Veteran's enlistment and separation examinations. Moreover, the Board determined in a November 2016 decision that the Veteran was exposed to noise during service. Therefore, the VA examiner's conclusion that the Veteran had a low probability of noise exposure was not supported by the evidence. The Board remanded the claim for further development. At his August 2016 Board hearing, the Veteran testified that he did not use hearing protection during service, that he noticed ringing in his ears shortly after returning home from the military, and that the symptoms became progressively worse. Although his military occupational specialty (MOS) was clerk typist, the Veteran explained that when he arrived in Vietnam, he was assigned to an ordinance company and heavy equipment maintenance company. He became a utility soldier whose duties included protecting the water truck driver in case they encountered a hostile environment and working alongside the mechanic to repair equipment that broke down in the field and battle zones. Assaults from the jungle required him to fire his weapon. After his service, the Veteran worked as a welder, metal fabricator, and corrections officer. He testified that he always wore hearing protection after his service to protect his hearing. As stated above, his wife testified that his hearing was noticeably poor as early as 1973 and that the Veteran did not have his hearing checked until the 1990s. In December 2016, the Veteran underwent another DBQ for hearing loss. The examiner reviewed his claims file. The Veteran stated that he could not hear the television very well and that it was too loud for his wife. An Audiogram revealed bilateral hearing loss per 38 C.F.R. § 3.385. The examiner indicated that the Veteran had bilateral sensorineural hearing loss from 500 Hertz to 4000 Hertz and from 6000 Hertz or higher. The examiner noted that the Veteran's hearing acuity during his separation examination was within normal limits bilaterally with no significant threshold shift identified. The examiner opined that it was not likely that the Veteran's hearing loss was the result of military noise exposure as the Veteran's service records did not support a claim of service-connected hearing loss in either ear. The Veterans August 1964 entrance examination and July 1967 separation examination both indicated normal hearing in both ears. Also, the Veteran indicated that he did not have hearing loss during his separation examination. The Veteran reported being aware of his hearing problems in-service; however, during a February 2012 audiology consultation the Veteran reported a hearing problem in both ears that started ten years earlier and worsened over time. The examiner noted that he did not know what hearing standards were used on the Veteran's separation examination; nonetheless, he found that the hearing thresholds were well within the normal limits in both ears. Also, the examiner found that there was no evidence of significant hearing loss in 1967. In September 2017, the Veteran had an addendum opinion to convert and compare the Veteran's August 1964 entrance examination audiometric test results to his July 1967 separation examination results. The VA audiologist converted the Veteran's entrance and exit examinations and found that the Veteran had a standard threshold shift in both ears during active duty from 1964 to 1967. The Board finds that the first element of service connection requiring a current diagnosis has been met for the Veteran's bilateral hearing loss. The Veteran's bilateral audiometric findings meet the definition of impaired hearing for compensation purposes, as defined in 38 C.F.R. § 3.385. As for the second element of service connection, the Board must first address the competency and credibility of the Veteran's lay statements. In this regard, the Board finds that the Veteran is competent to report the symptoms and onset of hearing loss as well sources of in-service noise exposure because they involve events and observations that are directly within his ability to experience and describe, and unlike a medical diagnosis, do not require any medical expertise. Additionally, because they are consistent with the nature of the Veteran's service as reflected by the letter received in November 2011, the Board finds the Veteran's lay statements to be credible. As for the element of medical nexus, as discussed above, according to Hensley v. Brown, 5 Vet. App. 155, 157 (1993), normal auditory thresholds vary from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Here, comparing the Veteran's enlistment audiometric results to his separation audiometric results shows what appears to be one abnormal findings pursuant to Hensley because the Veteran had hearing loss at or above 20 decibels in the left ear at 500 Hertz. The Board does acknowledge, however, that VA examiners have concluded that the audiograms overall reveal normal hearing in service, and notably the September 2017 VA addendum opinion indicated a standard threshold shift in both ears during active duty from 1964 to 1967 when the audiometric test results were converted to ISO-ANSI standard units. However, the Veteran and his wife have reported onset of hearing loss since service to the present, and have presented lay evidence in support of this assertion. The Board finds that the Veteran and his wife have provided competent and credible evidence of continuity of symptoms that have gotten progressively worse upon separation from active duty service. Moreover, the Veteran's personnel records as described above are consistent with the type of noise exposure described by the Veteran, and there are no indications that the Veteran's post-service occupational and recreational history is positive for significant noise exposure. The Board finds that because the June 2012 and December 2016 VA examination reports relied heavily on the Veteran's normal audiometric results as recorded in his July 1967 separation physical, thus, the opinions do not necessarily constitute the most probative evidence in support of or against medical nexus particularly when considered with the remaining lay and other medical evidence of record. Reonal v. Brown, 5 Vet. App. 458 (1993). The Board reiterates that the absence of evidence of hearing loss at separation is not determinative of whether the Veteran's hearing loss disability is related to his military service and does not preclude service connection in this case. See Hensley, 5 Vet. App. 155 at 159 (1993) (explaining that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability); 38 C.F.R. § 3.303 (d) (stating that service connection is warranted in some circumstances even if the disease at issue is first diagnosed after service); see also Walker, 708 F.3d 1331. Moreover, sensorineural hearing loss can be associated with noise exposure, and a review of the record demonstrates no reported significant post-service noise exposure, as demonstrated by the June 2012 and December 2016 VA examination reports. See Hensley, 5 Vet. App. 155. Hence, on this record, the evidence is found to be at least evenly balanced in showing that the Veteran's bilateral hearing loss disability at least as likely as not had clinical onset following his exposure to harmful noise levels in connection with his service. As such, resolving all reasonable doubt in the Veteran's favor, entitlement to service connection for the Veteran's bilateral hearing loss is warranted here. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs