06-33 001

Citation Nr: 1045627 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 06-33 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 19060. He had additional service in the U. S. Army Reserve from June 1960 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The issue of entitlement to service connection for tinnitus has been raised by the record. This is because of the Board's decision in the current appeal and opinions provided by examiners in March 2008 and May 2010. The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2010). 38 U.S.C.A. § 7107 (a)(2) (West 2002). FINDING OF FACT The Veteran currently suffers from a bilateral hearing loss disability and there is a reasonable basis to attribute such disability to his active military service. CONCLUSION OF LAW The Veteran has a bilateral hearing loss disability that was incurred in active service. 38 U.S.C.A. §§ 1131 , 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304, 3.307, 3.309, 3.385 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303 , 3.304 (2010). In addition, certain chronic diseases, including hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101 , 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307 , 3.309 (2010). 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2010); see also Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009). The Veteran served on active duty in the U. S. Army from June 1958 to June 1960 and in the U.S. Army Reserve from June 1960 to June 1962. The Veteran's service treatment records (STRs) are negative for evidence of a hearing loss in service. His April 1960 separation physical examination did not include audiometric testing. The Veteran's hearing was tested by the whispered and spoken voice tests. His scores were 15/15. The Veteran's limited personnel records reflect that his military occupational specialty (MOS) was as a clerk. He was assigned to an ordnance depot in Korea from November 1958 to January 1960. He was then assigned as a supply handler at an artillery battery at Ellsworth Air Force Base (AFB), South Dakota, from January 1960 until his separation in June 1960. The Veteran provided evidence that this was a missile unit. The Veteran submitted his initial claim for service connection for hearing loss in May 1999. Private treatment records for the period from 1964 to 1997 contained no evidence of complaints or treatment for hearing loss. The first objective post-service evidence of hearing loss was provided by VA treatment records for the period from January 2005 to November 2005. The Veteran was seen in the audiology clinic on an outpatient basis. He complained of a longstanding hearing problem. He reported noise exposure from heavy equipment while in service. He also reported constant tinnitus in both ears. His hearing tests revealed a hearing loss although the examiners felt that the results were not reliable based on the Veteran's responses during testing. The Veteran was issued hearing aids. The Veteran submitted statements from his two children in support of his claim in January 2007. The Board notes that both children were born after the Veteran's military service and have no first hand awareness of his hearing immediately after service. The children both said they remembered the Veteran as always having problems with his hearing and that he related his problem to his time in service. The Veteran and his spouse testified at a hearing at the RO in February 2007. The Veteran described how he believed being exposed to the extreme cold during his service in Korea affected his hearing. He also provided testimony about his duties being near, but not on, the flight line at Ellsworth AFB and that he was constantly exposed to loud noises at that time. His spouse testified that she first met the Veteran in 1963 and that she noticed that he had problems with his hearing back then. The Veteran also testified that he did not have noise exposure after service. He worked for the Postal Service for over 30 years. He said he worked as a mail handler and was around sorting machines that made some noise. They were like conveyor belts and made more of a steady versus loud noise. The Veteran was afforded a VA contract audiology examination in March 2008. The examiner noted that the Veteran reported service in Korea, to include the Korean War and that he participated in combat activity. The examiner noted that the Veteran said he was exposed to extreme cold and loud noises in service. The examiner also noted that the Veteran reported bilateral tinnitus for 50 years. The Veteran said he worked for the Postal Service for 32 years after service and used hearing protection. There is no indication that the examiner reviewed the claims folder, to include the STRs. The examiner did review the results of two VA outpatient audiograms from 2005, noted above. Air conduction testing revealed the following decibel losses at the tested frequencies: HERTZ [4000] RIGHT [100] LEFT [95] Bone conduction testing had the following results: HERTZ [4000] RIGHT [70] LEFT [70] The Veteran had a speech recognition score of 40 percent for the right ear and 36 percent for the left ear. The examiner said the results showed a continued diagnosis of bilateral hearing loss. The examiner also said that the etiology of the bilateral tinnitus was at least as likely as not a symptom associated with hearing loss. Finally, the examiner said that, due to the poor reliability of the testing, no opinion could be rendered regarding whether the hearing loss was related to service. The examiner provided an addendum to his report in June 2008. He said that the Veteran was not providing true, accurate hearing threshold levels. The examiner recommended re-testing preferably using a non-behavioral testing method such as threshold auditory brain (evoked) responses (ABR). The examiner added that he suspected malingering. The Board remanded the Veteran's claim for another examination in November 2009. The Veteran was afforded a VA audiology examination in May 2010. The examiner noted she had reviewed the claims folder. The examiner related the Veteran's military service as 13.5 months in Korea, with no noise claimed from these duties, and 6 months at Ellsworth AFB. The Veteran reported his duties as next to the airstrip and that he was exposed to noise from aircraft landing and taking off. No ear protection was worn. The Veteran reported employment with the Postal Service for 34 years with no loud noise exposure. He also reported having tinnitus ever since service. Audiometric testing showed the following puretone thresholds: HERTZ [4000] RIGHT [50] LEFT [45] The Veteran had speech recognition scores of 88 percent in the right ear and 92 percent in the left ear. The examiner stated that she believed the Veteran's test results were consistent/replicable. In regard to etiology of the hearing loss, the examiner noted the 15/15 test in service. She also noted the Veteran's reported noise exposure from his military duties. She said the type of hearing loss present was consistent with hearing loss due to noise exposure and/or aging. She also said the hearing loss pattern was also consistent with the subjective complaint of tinnitus and tinnitus was at least as likely as not likely due to the same causative factors as the Veteran's hearing loss. The examiner concluded that, without evidence of hearing loss while in the service or within one year of separation from the military, it was not possible to opine as to the causative nature of the hearing loss without resorting to mere speculation. The Veteran's claim remained denied and he was issued a supplemental statement of the case (SSOC) in July 2010. He was advised that he had 30 days to submit additional argument and/or evidence in support of his claim. The Veteran submitted statements from himself and his spouse in August 2010. The statements were cumulative of others already of record. The Veteran re-stated his belief as to how his hearing loss began in service. His spouse related her observations of the Veteran's hearing loss from when they met and over the years. The medical evidence of record includes two examinations that clearly demonstrate a hearing loss that meets the requirements under 38 C.F.R. § 3.385 . The Board notes that the examiner from March 2008 felts his test results were not reliable based on the Veteran's participation. However, the May 2010 VA examiner believed her results to be consistent. The latter test results were dramatically improved over the prior test results. Because of the unreliable nature of the results, the March 2008 examiner did not provide an opinion as to etiology. Although, it is noteworthy that he did not rule out the Veteran's military service as a possible etiology for the hearing loss. The May 2010 examiner listed two causes for the Veteran's hearing loss - noise exposure and aging. The only noise exposure she listed was that claimed by the Veteran in service. The examiner felt she could not provide an opinion as to a nexus to service unless there was evidence of hearing loss in service or within one year after service without resorting to speculation. She did not provide an opinion that said the hearing loss could not be related to service. The Court has issued several opinions that are helpful in evaluating the Veteran's claim. In Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), the Court found that the absence of a documented hearing loss while in service is not fatal to a claim for service connection. Further, in Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993), the Court noted that, when a veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Finally, in a case similar to that on appeal here, Peters v. Brown, 6 Vet. App. 540, 543 (1994), the Court said that a veteran may establish service connection for a disability not manifested during service, or within the statutory presumptive period, with evidence that demonstrates that the disability actually resulted from a disease or injury incurred in service. The Veteran has provided credible evidence of noise exposure related to his assignment at Ellsworth AFB and his military specialty. See 38 U.S.C.A. § 1154 (a) (West 2002). The Board finds that the Veteran did not participate in combat as his service in Korea was approximately five years after the ceasefire and there is no indication of any type of combat-related activities in the record. See 38 U.S.C.A. § 1154 (b) (West 2002). His spouse has provided competent lay evidence of her observations of his hearing loss symptoms within a short time after his separation from service. His two children have provided competent evidence of their observations of the Veteran's hearing loss symptoms over a number of years. The second VA examiner essentially placed the issue of causation in equipoise with her opinion. In resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is in order and the claim is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs