On appeal from the Department of Veterans Affairs (VA) Regional Office in New York, New York
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Peter J. Meadows, Attorney at Law
ATTORNEY FOR THE BOARD
James A. DeFrank, Associate Counsel
INTRODUCTION
The veteran served on active duty from June to November 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1996 decision of the New
York, New York RO, which denied service connection for
bilateral hearing loss.
In a June 2004 decision, the Board denied the veteran's
appealed claim for entitlement to service connection for
bilateral hearing loss.
In a January 2006 decision, the Court of Appeals of Veterans
Claims (CAVC) vacated the June 2004 Board decision and
remanded the issue for further development.
FINDING OF FACT
The veteran's current bilateral hearing loss is due to noise
exposure in active service.
CONCLUSION OF LAW
Current bilateral hearing loss was incurred in active
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303,
3.385 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
The VCAA is not applicable where further assistance would not
aid the appellant in substantiating his claim. Wensch v.
Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. §
5103A(a)(2) (Secretary not required to provide assistance
"if no reasonable possibility exists that such assistance
would aid in substantiating the claim"); see also VAOPGCPREC
5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice
and duty to assist provisions of the VCAA do not apply to
claims that could not be substantiated through such notice
and assistance). Because the claim is being reopened and
service connection is being granted, no further assistance is
needed to substantiate the appeal.
Applicable laws and regulations in service connection claims
Service connection will be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Service connection requires competent evidence showing: (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.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection can also be established for a chronic
disease, including sensorineural hearing loss as a disease of
the central nervous system, first shown to a compensable
degree within one year of separation from service.
38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2006).
If a chronic disease is identified in service and any time
thereafter, service connection will be presumed. Otherwise,
a continuity of symptomatology is required. 38 C.F.R.
§ 3.303(b) (2006).
Service connection for impaired hearing shall only be
established when hearing status as determined by audiometric
testing meets specified pure tone and speech recognition
criteria. Audiometric testing measures pure tone threshold
hearing levels (in decibels) over a range of frequencies (in
hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993).
The determination of whether a veteran has a disability based
on hearing loss is governed by 38 C.F.R. § 3.385. 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, 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.
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
Factual Background
The veteran's service medical records showed normal hearing
on audiometric testing during his separation examination in
November 1963.
In November 1993, the veteran underwent a private hearing
examination. He reported having a hearing problem for the
past 10-15 years that he attributed to artillery duty during
active service. He also reported working as a bartender.
Audiometric testing revealed hearing loss in both ears, worse
in the right.
In September 1996, the veteran underwent a VA hearing
examination. He reported impaired hearing bilaterally since
service, and a history of noise exposure while in service.
The diagnosis was hearing loss.
On the authorized audiological evaluation in September 1996
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
65
100
100
100
LEFT
5
10
60
60
65
Speech audiometry revealed speech recognition ability of 60
percent in the right ear and of 94 percent in the left ear.
A December 1996 report from Audrey Eisenstadt, M.D., reflects
that the veteran underwent a magnetic resonance imaging (MRI)
study to evaluate decreased hearing and possible acoustic
neuroma. The diagnostic impression was sinusitis with no
intracranial pathology or evidence of acoustic neuroma.
In December 1996, the veteran presented to Dr. Dean Berman
for his hearing loss. An audiological test demonstrated
hearing loss. In a January 1997 letter, Dr. Berman stated
that the veteran had sensorineural hearing loss that was
worse in his right ear. He concluded that the veteran's
hearing loss was due to loud noise exposure.
In May 2003, the veteran underwent a VA examination for
hearing loss. The veteran reported a history of artillery-
type noise exposure in service. He stated that he had
experienced decreased hearing acuity since he separated from
service. He denied any ear infections, ear surgery or any
occupational noise exposure after separation from service.
On the authorized audiological evaluation in May 2003 pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
85
100
105
105
105
LEFT
35
40
65
75
70
Speech audiometry revealed speech recognition ability of 32
percent in the right ear and of 70 percent in the left ear.
The examiner found that the audiological tests were
inconsistent and should not be used for rating purposes.
The diagnosis was bilateral high frequency hearing loss. The
examiner concluded that based on the veteran's separation
physical in November 1963 which documented audiometric
hearing tests within normal limits, it was more likely that
the veteran's current hearing loss was not related to noise
exposure in service.
In a February 2007 letter, Dr. Craig N. Bash indicated that
he reviewed the veteran's medical records for the purpose of
making a medical opinion concerning hearing loss as it
related to the veteran's time in service. Dr. Bash concluded
that the veteran's current hearing loss was due to the
veteran's military service. Dr. Bash noted that the veteran
entered the service fit for duty, had no history of ear
infections and had no history of post service noise exposure
as he had worked at a desk job. The veteran's medical
history documented hearing loss back to at least 1978 and the
veteran's current hearing loss was greater than would be
expected for a patient of his age due to the normal
progression of age induced hearing loss.
Analysis
With regard to the three elements of service connection, the
veteran has a present disability as shown by all recent
audiology examinations. 38 C.F.R. § 3.385.
The veteran is competent to report, as he has, noise exposure
in service. His report is consistent with his DD-214,
certificate of discharge, which shows that he served in the
field artillery. The element of an in-service disease or
injury is therefore also satisfied.
The remaining question is whether the there is a causal
relationship between the current disability and the in-
service disease or injury.
There are conflicting opinions as to whether the current
bilateral hearing loss is related to the veteran's active
service.
The February 2007 letter from Dr. Bash supports such a link.
Dr. Bash concluded that the veteran's current hearing loss
was due to the veteran's military service.
In contrast, the VA examiner who provided the May 2003
examination concluded that it was more likely that the
veteran's current hearing loss was not related to noise
exposure in service. The examiner relied on the negative
examination at service separation. The Court has recently
held, however, that an examination was inadequate where the
examiner relied on negative service medical records and did
not consider the veteran's statements in rendering an
opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007).
The favorable medical opinion of Dr. Bash was based on a
largely accurate history and review of the veteran's medical
records. Dr. Bash did not, however, comment on the normal
examination at service separation, and reported that the
veteran had only had "desk jobs" while the record showed
employment as a bartender. In any event this opinion is
competent and does support the claim. It is at least as
probative as the May 2003 VA examiners opinion.
For a veteran to prevail in his claim it must only be
demonstrated that there is an approximate balance of positive
and negative evidence. In other words, the preponderance of
the evidence must be against the claim for benefits to be
denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990).
In this case, it cannot be stated that the preponderance of
the evidence is against the claim of service connection for
bilateral hearing loss.
Therefore, resolving reasonable doubt in the veteran's favor,
the Board concludes that service connection is warranted for
bilateral hearing loss. 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to service connection for bilateral hearing loss
is granted.
