Citation Nr: 0604198	
Decision Date: 02/14/06    Archive Date: 02/22/06

DOCKET NO.  04-32 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel







INTRODUCTION

The veteran had active military service from February 1955 to 
February 1957.  He additionally served in the Army Reserves 
from February 1957 to January 1963.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a December 2003 rating decision of the 
Department of Veterans' Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio.  

In December 2005, the veteran testified before the 
undersigned Acting Veterans Law Judge during a video 
conference hearing; a transcript of that hearing is of 
record.  


FINDINGS OF FACT

1.  The veteran currently has bilateral hearing loss 
recognized as a disability for VA purposes.  

2.  While a member of the United States Army, the veteran 
likely experienced significant noise exposure as a result of 
his exposure to weapons fire.  

3.  The competent medical evidence of record relates the 
veteran's current hearing loss to his active military 
service.  


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing 
loss are met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2005).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's service medical records are not available for 
review.  Attempts by the RO to obtain any available service 
medical or personnel records from the National Personnel 
Records Center (NPRC) in St. Louis, Missouri, have proven 
unsuccessful.  In cases where records once in the hands of 
the government are lost, the Board has a heightened 
obligation to explain its findings and conclusions and to 
consider carefully the benefit-of- the-doubt rule.  See 
Cromer v. Nicholson, 19 Vet. App. 215 (2005)(per curiam) 
citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The 
Board's analysis of the veteran's claim for service 
connection for bilateral hearing loss has been undertaken 
with these heightened duties in mind.  

Service connection may be established for disability 
resulting from personal injury suffered or disease contracted 
in the line of duty, or for aggravation of a pre-existing 
injury suffered or disease contracted in the line of duty.  
See 38 U.S.C.A. 
§ 1131; 38 C.F.R. § 3.303.  Impaired hearing will be 
considered to be a disability for VA service connection 
purposes when the auditory threshold in any of the 
frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 
decibels or greater; or the thresholds for at least three of 
these frequencies are 26 decibels or greater; or speech 
recognition scores are less than 94 percent.  38 C.F.R. 
§ 3.385. 

In this case, while the veteran has contended that he was 
diagnosed with hearing loss during a medical examination at 
the Great Lakes Naval Station, there are no records to 
establish any diagnosis of in-service hearing loss.  However, 
the absence of in-service evidence of hearing loss is not 
fatal to the claim.  See Ledford v. Derwinski, 3 Vet. App. 
87, 89 (1992); see also Cartright v. Derwinski, 2 Vet. App. 
24, 25 (1991) (nowhere do VA regulations provide that a 
claimant must establish service connection through medical 
records alone).  Evidence of a current hearing loss 
disability (i.e., one meeting the requirements of section 
3.385, as noted above) and a medically sound basis for 
attributing such disability to service may serve as a basis 
for a grant of service connection for hearing loss.  See 
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

The veteran has contended that his hearing loss is the result 
of being exposed for several months to artillery fire at Fort 
Bliss, Texas.  He has reported receiving training on Army 
half-track vehicles with twin 50-caliber machine guns, and 
full-track vehicles with 30-millimeter twin guns.  The 
veteran has also reported that his unit went to White Sands 
several times to fire "big guns," and that he regularly 
spent time at a unit firing range in Wisconsin.  
Additionally, the veteran contends that he was never issued 
hearing protection and other than the hearing examination at 
Great Lakes Naval Station, never complained about the hearing 
loss because he felt it was his duty to just live with it.  

Post service medical evidence reflects bilateral hearing 
impairment sufficient to meet the criteria of 38 C.F.R. § 
3.385.  Thus, there is objective evidence of record 
indicating that the veteran currently has a bilateral hearing 
loss disability.  With regard to those available service 
records, a review of the veteran DD Form 214 (Armed Forces of 
the United States Report of Transfer or Discharge) reflects 
that his last duty assignment was noted as Headquarters 
Battery, 16th AAA Group.  A DA Form 1270 (Transfer or Release 
to Reserve Component of the Army), dated in February 1957, 
notes the veteran's service in the U.S. Army with the 
artillery.  

The veteran is competent to provide testimony concerning 
factual matters of which he had first hand knowledge (i.e., 
those events in which he was exposed to noise and his 
experiencing hearing loss in service).  He has not testified, 
as he would be medically incompetent to do, about a diagnosis 
or the etiology of his current hearing loss.  See Washington 
v. Nicholson, 19 Vet. App. 362 (2005).  As to the issue of 
the etiology, there is competent evidence-specifically, a 
September 2003 VA medical opinion as well as a February 2004 
private medical opinion-which notes that there is, at least 
as likely as not, a nexus between the veteran's in-service 
noise exposure and his current hearing loss.  While the 
examiners opinions are based on the veteran's reported 
medical history, the Board may not disregard a medical 
opinion solely on the rationale that the medical opinion was 
based on a history given by the veteran, but instead must 
evaluate the credibility and weight of the history upon which 
the medical opinion is predicated.  See Kowalski v. 
Nicholson, 19 Vet. App. 171 (2005).

In this case, the Board finds the veteran's contentions and 
testimony regarding his reported military experiences 
credible in that they are supported by the information 
contained in the DD Form 214 and DA Form 1270.  As such, the 
veteran likely experienced significant noise exposure during 
service as alleged.  Furthermore, there is no contrary 
evidence or opinion that conflicts with those medical 
opinions in support of the veteran's claim, and the veteran's 
reported post-service employment history does not include 
work that would necessarily involve any significant noise 
exposure.  

In summary, the veteran currently has bilateral hearing loss 
recognized as a disability for VA purposes, likely in-service 
noise exposure, and no other documented noise exposure that 
would necessarily account for his current bilateral hearing 
loss.  Furthermore, there are competent opinions suggesting 
that there is a relationship between reported in-service 
noise exposure and the veteran's current hearing loss 
disability.  In view of the foregoing, and affording the 
veteran the benefit of the doubt, the Board concludes that 
the criteria for service connection for 
bilateral hearing loss are met.  38 U.S.C.A. § 5107(b); see 
also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 
53-56 (1990). 


ORDER

Service connection for bilateral hearing loss is granted.  



____________________________________________
J. A. MARKEY
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs