Citation Nr: 0006506 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-10 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from May 1968 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied service connection for bilateral hearing loss. In December 1999, the Board requested a Veterans Health Administration (VHA) expert medical opinion as to the etiology of the veteran's bilateral hearing loss. FINDING OF FACT The veteran's bilateral hearing loss is the result of his exposure to acoustic trauma during service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.385 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). In addition, service connection may be granted for a chronic disease, including sensorineural hearing loss, if manifested to a compensable degree with one year following service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. 3.303(d) (1999). The term "hearing loss disability" is defined in VA regulations. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 (1999) 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 medical relationship between the veteran's in- service exposure to loud noise and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) (1999). A review of the veteran's DD 214 shows that the veteran had foreign service and was awarded the Purple Heart, Rifle Sharpshooter Badge, and the Combat Action Ribbon. In addition, it is indicated that his Military Occupational Specialty was Rifleman. The pertinent law provides that if the veteran was engaged in combat with the enemy while in active service, the Secretary shall accept lay or other evidence as sufficient proof of service connection if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 1991). In this case, the Board finds the veteran is a combat veteran. As noted above, where a combat veteran alleges he suffers disability, including hearing loss, due to an injury (acoustic trauma) incurred in service, 38 U.S.C.A. § 1154(b) must be considered. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995). 38 U.S.C.A. § 1154 makes it clear that special considerations attend the cases of combat veterans. The veteran currently asserts that he was exposed to acoustic trauma during his service in Vietnam, that this acoustic trauma resulted in bilateral hearing loss, and that he still suffers from bilateral hearing loss. Specifically, the veteran's service medical records reflect that he was wounded in Vietnam in June 1969 by a Chi-Con grenade. According to the veteran, the explosion was so close that it affected his hearing. The veteran's separation examination indicated that his hearing was within normal limits at discharge based on whispered voice testing. In August 1997, the veteran was afforded a VA audiological examination. At that time, the veteran reported that he had been aware of bilateral hearing loss since 1969, and he noted slight progression in his communicative difficulties in crowds and telephone conversations. The veteran also reported the onset of bilateral tinnitus following a grenade explosion in Vietnam in 1969. Audiometric testing revealed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 60 60 LEFT 15 15 75 80 80 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 88 percent in the left ear. The examiner noted that the test results revealed hearing within normal limits through 2000 Hz, with moderately severe sensorineural loss in the region of 3000-4000 Hz improving slightly to moderate loss in the region of 6000-8000 Hz. For the left ear, results indicated hearing within normal limits through 1000 Hz, with severe sensorineural loss in the region of 1500-4000 Hz dropping slightly to profound loss at 6000 Hz, but returning to severe loss at 8000 Hz. Speech discrimination was excellent for the right ear, and good for the left ear. The examiner did not opine as to the etiology of the veteran's hearing loss. The Board notes that in the September 1997 rating decision, the RO denied service connection for bilateral hearing loss, but granted service connection for tinnitus, with an evaluation of 10 percent. The RO granted service connection for tinnitus based on the grenade explosion experienced by the veteran in Vietnam. Thus it appears that the RO conceded that the veteran was exposed to acoustic trauma. On appeal, the Board found that a medical opinion as to the etiology of the veteran's bilateral hearing loss was necessary in order to fairly decide the merits of the veteran's claim. As such, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) in December 1999. Specifically, the Board asked whether it was as least as likely as not that the veteran's current hearing loss is due to the veteran's exposure to acoustic trauma in service, and/or whether it was as least as likely as not that the grenade explosion experienced by the veteran in Vietnam caused the veteran's current hearing loss. In response, the audiological supervisor from the West Roxbury VA Medical Center reviewed the veteran's claims file and provided an expert medical opinion regarding the etiology of the veteran's bilateral hearing loss. Specifically, the audiologist noted that the veteran has bilateral high frequency, sensori-neural hearing loss accompanied with tinnitus, which is consistent with the history of acoustic trauma. The audiologist opined that it is as least as likely as not that the veteran's current hearing loss and tinnitus are due to acoustic trauma sustained in the service. Moreover, the audiologist noted that the whispered voice separation physical would not effectively demonstrate if the patient had a hearing loss at 3000 or 4000 Hz and added that a whispered voice test is not comparable to modern audiologic testing. In sum, the medical evidence of record does not reflect a diagnosis of bilateral hearing loss during service or for many years thereafter. However, the Board notes that the August 1997 audiological evaluation shows that the veteran currently has a "hearing loss disability" under the applicable VA regulation. In addition, the examination shows that the veteran currently has tinnitus. The examiner noted that the veteran's history was positive for noise exposure during service. The August 1997 VA examination shows that the veteran related to the examiner that he was exposed to acoustic trauma during service and that the examiner relied upon this report regarding the onset of the veteran's tinnitus and bilateral hearing loss. However, the Board notes that the records, in particular the (DD 214), support the veteran's report of noise exposure. As such, the examiner was not relying upon an inaccurate medical history during the examination. The Board notes that although the veteran's discharge examination did not show that he had a hearing deficit or other ear disability, subsequent post-service diagnosis of bilateral hearing loss and tinnitus has been rendered. In addition, the January 2000 expert medical opinion indicated that the whispered voice test would not effectively demonstrate if the veteran had a hearing loss at 3000 or 4000 Hz and that a whispered voice test is not comparable to modern audiologic testing. Moreover, the audiological expert opined that the veteran's bilateral hearing loss was as least as likely as not caused by acoustic trauma in service. With the resolution of every reasonable doubt in favor of the veteran as required by 38 U.S.C.A. § 1154(b) (West 1991), the Board finds that the current VA expert medical opinion is sufficient to demonstrate a medical relationship between the veteran's in-service noise exposure and his current bilateral hearing loss. The Board further finds, with the resolution of every reasonable doubt in favor of the veteran, that even though there is an absence of medical treatment for bilateral hearing loss for many years after service, the current medical evidence coupled with expert opinion of record establishes that the veteran's current bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.385 (1999). ORDER Service connection for bilateral hearing loss is granted. N. R. ROBIN Member, Board of Veterans' Appeals