Citation Nr: 1807931	
Decision Date: 02/07/18    Archive Date: 02/20/18

DOCKET NO.  17-37 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

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).

The Veteran served on active duty from October 1961 to July 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.


FINDINGS OF FACT

A bilateral hearing loss disability was manifest during active service.


CONCLUSION OF LAW

A bilateral hearing loss disability was incurred in service.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110 (wartime service), 1131 (peacetime service).

To establish entitlement to service-connected compensation benefits, 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).  
Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a "chronic disease" under 38 USCA 1101 and 38 C.F.R. § 3.309 (a). 

"For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic."  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in 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 discharge is required to support the claim."  38 CFR § 3.303 (b).

With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected.  Id. at 159.

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, 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. 

Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA).  Since then, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  Therefore, in order to facilitate data comparison, the ASA standards used at the Veteran's February 1963 in-service examination and May 1964 separation examination have been converted to ISO-ANSI standards.  For ISO conversion, the Board added (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; and (+5) at 4000 Hertz.

The Veteran contends that he has a bilateral hearing loss disability due to in-service noise exposure.  He asserts that his post-service occupation was in banking, and has not otherwise experienced post-service noise exposure.

The Veteran's DD Form 214 indicates that his MOS was clerk typist.  He did not report the specific nature and frequency of the exposure in this military occupation.  However, the Veteran is competent to report exposure to noise while in service and the Board finds no reason to doubt the credibility of his testimony regarding noise exposure as it is reasonable that he underwent standard weapons training and served in Vietnam.

An April 2017 VA audiological examination confirms the presence of a hearing loss disability pursuant to 38 C.F.R. § 3.385. 

At his October 1961 enlistment examination, the Veteran underwent a whisper voice test which revealed bilateral hearing of 15/15.  The Veteran underwent audiometric testing at a February 1963 examination and at his May 1964 separation examination.

After conversion to the ISO-ANSI standards, the Veteran's February 1963 service examination contains the following pure tone thresholds:


HERTZ

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

After conversion to the ISO-ANSI standards, the Veteran's May 1964 separation examination contains the following pure tone thresholds:


HERTZ

500
1000
2000
3000
4000
RIGHT
40
25
25
25
15
LEFT
40
25
25
30
15

There is no indication in the record that this examination was inaccurate.  The Board notes the April 2017 VA examination and corresponding medical opinion which found that the Veteran's current hearing loss disability is less likely than not related to service.  The examiner's rationale cites normal hearing at the Veteran's separation examination.  However, it appears that the examiner failed to convert the results of the separation examination from ASA to ANSI standards.  As a result, this opinion is based on an inaccurate factual premise and is afforded no probative value.  See Reonal v. Brown, 5 Vet. App. 458 (1993) (stating that "[a]n opinion based upon an inaccurate factual premise has no probative value").

There is objective evidence of a bilateral hearing loss disability consistent with the provisions of 38 C.F.R. § 3.385 in service at the Veteran's May 1964 separation examination.  There is no evidence that this examination was inaccurate.  Thus, a hearing loss disability was shown in service.  Service connection for a bilateral hearing loss disability is warranted.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is granted.




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs