Citation Nr: 0003914 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-28 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from April 1966 to April 1968 and from August 1970 to August 1974. This matter arises before the Board of Veterans' Appeals (Board) from a July 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that found that no new and material evidence had been submitted in support of the veteran's claim of entitlement to service connection for bilateral hearing loss. Subsequent to the veteran's disagreement with the above rating decision, in a supplemental statement of the case (SSOC) dated in June 1999, the RO reopened the veteran's service connection claim based on the submission of new and material evidence. During the veteran's hearing before a Member of the Board, he withdrew the issue of an increased evaluation for his post- traumatic stress disorder currently evaluated at 50 percent. FINDING OF FACT Medical evidence of a nexus between bilateral hearing loss and the veteran's period of service has been submitted. CONCLUSION OF LAW The veteran's bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background During a physical examination dated in February 1966, the audiometry revealed no evidence of hearing loss. In July 1966, it was noted that the veteran had tinnitus from firing. In a separation examination dated in February 1968, there are no pertinent findings. A report from VA examination dated in July 1969 relates only to orthopedic troubles and not to hearing loss. Also included in the service medical records is an uninterpreted audiogram dated in January 1970. In an examination report also dated in January 1970, the examiner noted left hear low frequency hearing loss. The audiometer results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 N/A 15 LEFT -10 40 15 N/A 25 During a July 1973 physical examination, the audiogram results were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 N/A 15 LEFT 15 35 25 N/A 15 In the report from separation examination conducted in June 1974, it was reflected that the audiogram results indicated 0 decibel losses at all levels. VA examinations conducted in November 1974 and November 1976 solely relate to treatment of orthopedic problems. On March 1984 audiometry, the results are reflected as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 60 70 LEFT 40 50 55 70 65 In the remarks associated with the audiogram, the examiner noted that the veteran had reported trouble with hearing loss since his period of service in Vietnam when he was wounded during a booby trap grenade. In a rating decision dated in April 1984, the RO denied entitlement to service connection for bilateral hearing loss based on a lack of evidence to substantiate that hearing loss was incurred during the veteran's period of active service. A June 1984 VA audio examination in Temple, Texas revealed these results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 N/A N/A LEFT 35 45 50 N/A N/A The examiner noted mild to moderate bilateral hearing loss. VA audiology examination out of Waco, Texas dated in June 1984 disclosed: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 40 50 70 LEFT 35 45 50 70 65 VA outpatient records extending from December 1988 to September 1989 do not relate to any hearing loss. VA examination dated in August 1991 does not reflect treatment for hearing loss; only the veteran's continued complaints of increased hearing loss are mentioned. Reflected on Form DD216 dated in July 1991, the veteran's hearing examination results were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 55 65 65 LEFT 40 50 55 70 70 In Form DD216 dated in March 1992, the results of the veteran's hearing examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 55 65 65 LEFT 45 50 55 70 60 In VA outpatient records dated in 1997, other than the veteran's complaints of hearing loss, the records do not reflect pertinent treatment. VA audiology examination dated in January 1997 revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 55 60 70 LEFT 45 55 60 70 70 In April 1997, the veteran underwent another VA audiology examination, during which the following results were reported: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 55 60 70 LEFT 45 55 60 70 60 During that examination, the examiner noted the veteran's reported history of a 20-year history of hearing loss. The examiner also noted that the veteran had worked in a variety of noisy occupational environments. In October 1997, a statement from a private clinical audiologist dated in July 1994 was included in the veteran's claims folder that reveals moderate to severe sensorineural bilateral hearing loss. In October 1997, the veteran had a personal hearing, during which time he testified that when he was a tank mechanic during his second period of service, he was exposed to very loud noise. Transcript (T.) at 10. Also, the veteran stated that during his first period of service, he was exposed to artillery rounds and a grenade explosion. (T.) at 13 - 15. When asked about when he was first diagnosed with hearing problems, the veteran testified that he recalls that it was when he was working as a mechanic. (T.) at 16. In a June 1999 SSOC, the RO found that the veteran had submitted new and material evidence to warrant a reopening of his service connection claim. VA audiogram conducted in August 1999 revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 55 60 60 55 65 LEFT 50 60 65 70 70 During that examination, the examiner noted that the veteran's bilateral hearing loss was consistent with the veteran's history of noise exposure, but that the effects of his civilian noise exposure as well as other factors could not be ruled out. Also of record is the report from a September 1999 hearing examination. In a recitation of the veteran's past medical history, the examiner noted the incident in service in which the veteran was wounded during an explosion and the veteran's exposure to a great deal of noise when he worked as a mechanic. On examination, the examiner noted that all symptomatology related to the veteran's ears was normal. Also, the examiner noted that the audiograms of record are indicative of significant sensorineural hearing loss and stated that the veteran's bilateral hearing loss was consistent with the veteran's reported history of noise exposure. In November 1999, the veteran had a hearing before a Member of the Board, at which time he essentially asserted the same contentions that he had stated in his earlier hearing in 1997. Overall, the veteran attributed his hearing loss to exposure to gunfire during two major battles in which he was involved and the grenade explosion mentioned earlier above. The veteran also testified that he did not seek treatment in service for hearing loss and did not notice the problem until he was already separated from service. (T.) at 4. However, he stated that for the last four years in service, the veteran worked in a closed-in mechanic shop with large tanks and vehicles. (T.) at 4. Further, the veteran stated that he had had a bout with meningitis when in service and post- service, he found out that such illness could contribute to some hearing loss. (T.) at 8. Analysis A veteran is entitled to service connection for disability resulting from disease or injury coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.306(a) (1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, albeit remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). Service connection may also be allowed on a presumptive basis for certain disabilities, including sensorineural hearing loss if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection for bilateral hearing loss has requirements other than those indicated above. See 38 C.F.R. § 3.385 (1999). The threshold for normal hearing ranges from zero to twenty decibels, and any reading higher than twenty indicates some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, under VA law, service connection may only be granted for impaired hearing when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz reaches a level of 40 decibels or greater. Also, impaired hearing will be considered a disability if the pure tone threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4,000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Prior to a determination of entitlement to service connection, it is incumbent upon the veteran to submit a well grounded claim. A well grounded claim is a meritorious claim, capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) requires that for a claim to be well grounded, there must be competent evidence of current disability, of incurrence or aggravation of a disease or injury in service, and of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). In this veteran's case, he has established a well grounded claim by virtue of the clinical evidence of record that suggests a medical link between his current hearing loss and his period of active service. Furthermore, the veteran has provided competent medical evidence so as to warrant a grant of service connection for his bilateral hearing loss. The Board notes in particular that there was some evidence of hearing loss during a period of time while the veteran was in service. Tinnitus was noted in 1966 and service connection is in effect for tinnitus. While there were reportedly normal findings at the time of separation from service in 1974, the examination reflects simply "0" decibel losses at every frequency. Given the earlier audiometric findings, this result does not appear realistic. Moreover, there is no audiogram on file to support the scores noted on the separation examination. Furthermore, during the most recent VA examinations in 1999, the Board wishes to point out that the VA examiners' recitation of the veteran's inservice history implies that the veteran's hearing loss could be the result of traumatic noise exposure during a grenade explosion or several battles while serving in Vietnam, as the veteran had continuously reported. Although it is true that no one examiner specifically provided a medical opinion to relate any post- service hearing loss to the veteran's period of service, the fact that the VA examiners in the 1999 audiological examinations felt it significant to record such history suggests that it was considered to be medically relevant. Moreover, the veteran has provided consistent reports and testimony of the events inservice and treatment that ensued since separation from service to date. The veteran has not varied in his account that his hearing problems began at the time when he experienced a grenade explosion during service in Vietnam and reported other incidences of exposure to noise in battle. There is no question as to the veteran's inservice experiences and injuries, as confirmed in the service medical records and subsequent clinical records, and there is no doubt that the veteran served in a capacity as a gunner and marksman while on active duty in Vietnam. Although such reporting does not imply that such statements equate with competent medical opinions or that the veteran in this case is capable of rendering a competent medical opinion, the mere fact that his rendition of the series of events that occurred during his period of service in Vietnam are consistent and without change, and the fact that such occurrences are well-documented in the claims folder, merits attention. Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992). Such assertions have particular importance when taken in tandem with the VA examiners' statements made during the August and September 1999 examinations, to the effect that the veteran's bilateral hearing loss is consistent with his reports of inservice traumatic noise exposure. Therefore, based on those medical opinions, the Board has determined that in consideration of relative equipoise and reasonable doubt, there is an approximate balance between positive and negative evidence as to the merits of the veteran's claim. Thus, the benefit of the doubt in resolving this issue shall be given to the veteran, as provided under 38 U.S.C.A. § 5107 (West 1991). ORDER Entitlement to service connection for bilateral hearing loss is granted. V. L. Jordan Member, Board of Veterans' Appeals