Citation Nr: 0813354 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-30 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Raven D. Perry, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from November 1954 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied the veteran's claim of entitlement to service connection for left ear hearing loss. The veteran filed a notice of disagreement in regards to the March 2006 rating decision, requesting a de novo review of his claims by a decision review officer (DRO). The DRO confirmed the RO's findings in a July 2006 statement of the case (SOC), prompting the veteran to file his substantive appeal (VA Form 9) in September 2006. FINDING OF FACT The competent medical evidence of record supports a finding that the veteran's left ear hearing loss was incurred during active military service. CONCLUSION OF LAW Service connection for left ear sensorineural hearing loss is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.326(a) (2007). In light of the favorable decision for the veteran in this case, any error in the timing or content of VCAA notice or assistance is moot. Relevant law and regulations Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In order for hearing loss to be considered a disability for VA purposes entitling the appellant to compensation benefits, certain criteria must be met. Under 38 C.F.R. § 3.385 (2007), impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The regulation does not state that the requirements contained therein need be met during service. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). Prior to November 1967, the service department reported audiometric test results under American Standard Associates (ASA) values. The Department of Defense adopted the International Standards Organization (ISO) values in November 1967. In July 1966, the VA adopted the ISO standard, which is the standard applied in 38 C.F.R. § 3.385 (2007). The figures in parentheses represent the conversion from the ASA to the ISO values. Analysis The veteran seeks service connection for left ear hearing loss. In this case of element (1) under Hickson, the January 2006 VA examination report, satisfies the requirements of 38 C.F.R. § 3.385 for establishing a current hearing loss disability. With respect to element (2), in-service disease or injury, the veteran has asserted that he suffered from severe acoustic trauma while in the military. The veteran reports that he was assigned as an artillery crew member which regularly exposed him to loud noises without the aid of earplugs. There is no reason in the record to doubt the veteran's credibility as to the events he described in service. Further, there is no evidence of a hearing loss disability at entrance, but the November 1956 separation examination report shows that audiometric testing revealed pure tone thresholds (after ISO conversion) of 40, 25, 25, N/A, and 30 decibels in left right ear at 500, 1,000, 2,000, 3,000, and 4000 Hertz, respectively. Thus, for the purposes of this decision, the Board notes that there is evidence of hazardous noise exposure during service in the form of the veteran's contentions, and evidence of actual in-service onset of a hearing loss disability in the form of the separation examination. With respect to element (3), the Board notes that there are conflicting documented medical nexus or linkage opinions concerning the veteran's hearing loss claim. In a September 2005 statement, Dr. C., a private examiner concluded that "Sensorineural hearing loss [was] severe to profound in the upper frequencies with progression. [The] etiology is unknown although most likely this is a continuation of deterioration probably started with the artillery during his army career." The veteran was also provided two examinations by a VA examiner in 2006. In a January 2006 statement, the examiner concluded that "due to normal hearing at military separation in the left ear, it is unlikely that current left-sided hearing loss is related to military service." However, that examiner appears to have not considered the need to convert ASA units to ISO units, which, as noted, reflect that the veteran did in fact have a hearing disability at the time of separation as defined by 38 C.F.R. § 3.385. Furthermore, in a June 2006 a statement by the VA examiner reads, "Given military exposure, it is as likely as not that a portion of this tinnitus and hearing loss is related to military acoustic trauma." Thus, that same examiner found a relationship between the present hearing loss and service, without distinguishing between the ears, or noting the supposed absence of any hearing loss in service. In a subsequent addendum, the examiner clarified that his opinion only referred to the right ear. However, the examiner again appears to have not considered the need to convert ASA units to ISO units. In light of the results of the separation examination after converting to ISO units, and the letter from the private examiner, the Board finds that the competent medical evidence of record is at least in equipoise as to the crucial medical question as to whether the veteran's left ear hearing loss is a result of acoustic trauma in service. The Board will therefore apply the benefit of the doubt rule. Accordingly, the Board concludes that service connection for left ear hearing loss is warranted. See 38 C.F.R. § 3.303. ORDER Service connection for left ear hearing loss is granted. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs