Hensley v. Brown

5 Vet. App. 155, 1993 U.S. Vet. App. LEXIS 171, 1993 WL 158779
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 18, 1993
DocketNo. 91-1179
StatusPublished
Cited by206 cases

This text of 5 Vet. App. 155 (Hensley v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hensley v. Brown, 5 Vet. App. 155, 1993 U.S. Vet. App. LEXIS 171, 1993 WL 158779 (Cal. 1993).

Opinion

STEINBERG, Associate Judge:

The appellant, Vietnam veteran Danny J. Hensley, appeals from a March 13, 1991, Board of Veterans’ Appeals (BVA or Board) decision denying service-connected disability compensation for bilateral hearing loss. The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance. For the reasons set forth below, the Court will vacate the BVA decision and remand the matter for readjudication.

I. Background

The veteran served in the U.S. Navy from October 10, 1969, to August 17, 1973. R. at 13. On his applications to the Department of Veterans Affairs (VA) for service-connected disability benefits, he reported having served on an aircraft carrier and having incurred hearing loss as the result of working on and around jet aircraft in service. R. at 16, 22. Although the service records before the Court do not specifically mention service on an aircraft carrier, his service separation report states that his last duty assignment was with an attack squadron and that he had nearly three years of foreign and/or sea service during the Vietnam Conflict. R. at 35.

At his August 1969 examination for entrance onto active duty, the following threshold hearing levels were reported on audiometric testing:

[157]*157500 1000 2000 3000 4000 (Hertz)
RIGHT: 10 -5 -10 — -5 (decibels)
LEFT: 10 -5 -10 — 60

R. at 2. The examiner diagnosed “Defective] hearing”. Ibid. Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988). As explained in part I.A., below, however, hearing loss does not constitute a disability for VA purposes when the threshold levels at 500, 1000, 2000, 3000, and 4000 Hz are all less than 40 dB and at least three are 25 dB or less. See 38 C.F.R. § 3.385 (1992). The record does not contain any records of treatment for hearing problems in service. At his August 1973 separation examination, the veteran’s hearing levels were measured on audiome-tric testing as follows:

500 1000 2000 3000 4000 (Hz)
RIGHT: 35 25 15 5 10 (dB)
LEFT: 5 0 0 20 70

R. at 10. With the exception of the left-ear result at 500 Hz, all of the scores showed a worsening of hearing at separation when compared with the scores at entrance. The examiner diagnosed “HFHL [high-frequency hearing loss] both ears.” Ibid.

In January 1990, the veteran filed with a VA regional office (RO) an application for service-connected disability compensation for hearing loss. R. at 16. On his application, he reported having received treatment for his hearing loss since December 1989. R. at 17. The RO received reports of a December 1989 private physical examination and of December 1989 and January 1990 private audiometric testing. R. at 19-20, 34. In the report of the physical examination, the examiner diagnosed “bilateral [HFHL]” due to “probable noise trauma”. R. at 34. The audiometric test reports recorded threshold hearing levels of 75 and 85 dB at 4000 Hz and 65 and 40 dB at 3000 Hz in the right ear; none of the other recorded thresholds was above 30 dB. R. at 19-20. On the January 1990 report of audiometric testing, the examiner noted that the veteran’s noise exposure had included “military — -jet aircraft[,] some equipment/maehinery[, and] hunting”, and that his last exposure had been in October 1989. R. at 20. In a January 1990 letter to VA, the examiner indicated that the veteran had bilateral sensorineural hearing loss, and stated: “patient to wear ear protection in noise — high risk for noise damage because of years with jet aircraft, machinery....” R. at 31.

The veteran was given a VA audiometric examination in April 1990, at which time his hearing levels were reported as follows:

500 1000 2000 3000 4000 (Hz)
RIGHT: 25 20 15 5 40 (dB)
LEFT: 5 10 0 45 90

R. at 25-26. Except for the scores at 4000 Hz in both ears and 3000 Hz in the left ear, the veteran’s hearing was generally not worse than it had been at separation in 1973. His score on a “speech recognition” test was 96%. Ibid. He was diagnosed with “bilateral, high-frequency, sensorin-eural hearing loss.” R. at 25. The examiner noted that he had had an 18-to-19-year history of unilateral loss in the left ear. R. at 26.

In a June 1990 decision, the RO denied service connection for bilateral HFHL, concluding that hearing in the right ear had been within normal limits at separation, and that, although there was hearing loss in the left ear at separation, the record of the entrance examination' showed that such hearing loss was present at entry and that the condition was not aggravated beyond the normal progression of the condition. R. at 36-37. The veteran filed a Notice of Disagreement in June 1990 in which he stated that the examination at separation from service did not sufficiently evaluate whether his hearing loss may have been related to his exposure to jet engine noise and that the examiner had told him then that his discharge would be delayed if he wanted to pursue that issue. R. at 42-43. After the RO issued a Statement of the Case, he submitted a Form 1-9 (Appeal to the BVA), again asserting that his in-service noise exposure had caused hearing loss. R. at 50-51.

[158]*158In the March 13,1991, BVA decision here on appeal, the Board denied service connection for hearing loss. Hensley, BVA 91-_(Mar. 13, 1991). With respect to the right ear, the Board concluded that “the veteran’s hearing acuity in his right ear was within normal limits during service, and [HFHL] in the right ear was not present until many years after service.” Id. at 5. With respect to the left ear, the Board noted that the threshold levels of 60 dB and 70 dB in the 4000 Hz range recorded on the entrance and separation audiometric tests, respectively, were outside of normal limits and represented a 10-decibel dimin-ishment in hearing acuity at that level during service. Id. at 4. The Board concluded, however, that the recorded diminishment in hearing during service was “of minimal significance in demonstrating an increase in the severity of any preservice hearing deficit” and that the evidence, therefore, did not demonstrate that the veteran’s preexisting right-ear hearing disability had been aggravated during service. Ibid.

On appeal to this Court, the appellant asserts that the BVA erred in concluding that his hearing was “within normal limits” upon separation from service and in failing to consider whether any hearing loss becoming manifest after his separation from service was related to his exposure to noise trauma during service. In August 1992, after the Secretary had filed a motion for summary affirmance, the Court ordered the Secretary to file a supplemental memorandum of law; the Court also permitted appellant to file a response to that memorandum. The Secretary filed his memorandum in October 1992, and the appellant filed a response in December 1992. The Court appreciates the contributions of both parties.

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Cite This Page — Counsel Stack

Bluebook (online)
5 Vet. App. 155, 1993 U.S. Vet. App. LEXIS 171, 1993 WL 158779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hensley-v-brown-cavc-1993.