Citation Nr: 1504947 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 12-35 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from April 1968 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned in April 2014. A transcript of that hearing has been associated with the claims file. FINDING OF FACT The Veteran has experienced bilateral hearing loss since his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2014). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2014). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)." M21-1MR III.iv.4.B.12.a. As such, service connection for sensorineural hearing loss (as an organic disease of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. § 3.307, 3.309 (2014). Moreover, the concept of continuity of symptomatology as clarified by Walker is applicable in this case. The March 2011 VA examiner has indicated that the Veteran's hearing loss is sensorineural in nature. The Veteran's January 1968 service entrance examination and August 1972 service separation examination show that his hearing was within normal limits, but show that his hearing acuity had decreased from entrance to separation. His service treatment records (STRs) do not show any complaints of hearing loss. Nevertheless, the Veteran asserts that he has bilateral hearing loss as due to active service hazardous noise exposure. In addition to serving as an aircraft electrician and being exposed to the frequent jet engine and other flight line noises, he asserts that he was exposed to high levels of noise as an armored personnel carrier (APC) driver when he served in the artillery. The Board finds the Veteran's account credible and consistent with the circumstances of his service, and notes that the RO has conceded in-service hazardous noise exposure in its April 2011 rating decision. 38 U.S.C.A. § 1154(a) (West 2014). Such is sufficient to meet Shedden element (2). There is also evidence that Shedden element (1) has been met. On a VA audiology examination in March 2011, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss for VA purposes (see 38 C.F.R. § 3.385). As for the nexus criterion, the examiner opined that it was less likely as not that the Veteran's current hearing loss was related to his service. Reference was made to hearing within normal limits upon entrance into and separation from service. The examiner also noted that the test results were suggestive of both long-standing noise-induced hearing loss and age-related hearing loss. The examiner related that, while in active service, the Veteran worked as an artillery liaison, drove an APC, and worked on the flight line, all without hearing protection; after service he worked as a carpenter for 15 years, operated an excavator and a backhoe, drove a forklift, and operated a wood chipper, and worked construction as a carpenter for 22-23 years, all with hearing protection as mandated for that specific job. The examiner also related that the Veteran hunted and used power tools recreationally, all with hearing protection. In his hearing testimony, the Veteran related that he was exposed to the noise resulting from his work as an aircraft electrician and working on the flight line. The Veteran also stated that he drove APCs when he served in the artillery, which were very loud, with nothing but a communications headset as hearing protection. He stated that he began noticing his hearing problems a few months after he separated from active service, when it became gradually more difficult for him to distinguish conversations from background noises. The Veteran has also reported that while he was exposed to hazardous noise after separation from service, working as a carpenter for a paper company and then a construction company, he always wore the OSHA-mandated hearing protection. The Veteran also related that his jobs required regular hearing tests. The Veteran's spouse, whom he married in or around 2006, stated that she has known the Veteran since the mid-1990s. She recalled that she had to repeat herself when speaking to him. The Veteran's spouse related that she noticed the Veteran's hearing problems since they have met, and that they have increased over the years. Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Federal Circuit held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In this case, the Veteran is competent to describe his recollections of noticing his hearing loss right after service, as well as his current manifestations of hearing loss, because this requires only personal knowledge as it comes to him through his senses. His spouse was also competent to observe the Veteran's hearing loss and attest to her recollections that his hearing loss was present when they met and was an on-going symptom. Layno, 6 Vet. App. at 470. The Board also finds the lay statement in evidence credible. The statement of the Veteran and his spouse are consistent with each other, and with other evidence of record, such as the evidence of the circumstances of the Veteran's service. Despite not being buttressed by contemporaneous medical evidence, the statements attest to the continuity of the Veteran's bilateral hearing loss symptomatology, and the Board finds them both assertive and persuasive. The Board does note that the Veteran's spouse met him about 20 years after he separated from service, and, as such, her testimony is less persuasive than that of her husband. The Board finds that the Veteran's statements as to the onset of hearing loss and continuity of symptomatology of hearing loss since service are credible, and the Board finds that those lay statements are sufficient to establish continuity of symptomatology of hearing loss in this case. Both the Veteran and the Board acknowledge that chronic hearing loss was not documented in service or for many years thereafter. However, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014). In this regard, while the VA opinion of record is not favorable to the Veteran, the March 2011 VA examiner did not address the assertions of continuity of symptomatology of the Veteran's hearing loss, stating instead that the Veteran's disability was not the result of his service. The examiner also did not address a clear threshold shift demonstrated between his entrance and exit examinations which, despite not indicating that the Veteran had hearing loss for VA purposes at that time, showed that the Veteran's hearing acuity decreased when he was in the military. Despite clearly stating that the Veteran's largest dose of unprotected noise exposure was during active service, the March 2011 VA examiner appeared to attribute the Veteran's hearing loss to factors other than service, such as age, noise exposure outside of service, and medical conditions. The Veteran, however, essentially denied any other factors caused his hearing loss, asserting that his hearing loss began right after active service as a result to hazardous noise exposure, and that he used hearing protection when exposed to any hazardous noise outside of service. It is also worth noting that the examiner did not explain what medical conditions could have caused the Veteran's hearing loss. In any event, the Board finds that the evidence is, at a minimum, at least in equipoise. In light of the credible lay evidence of hearing loss right after service, evidence showing that the Veteran's hearing acuity decreased while he was in service, continuity of symptoms since service, and resolving any doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2014). The Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs