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