Citation Nr: 0813374	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  07-34 724	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

This appeal comes before the Board of Veterans' Appeals 
(Board) from a January 2007 rating decision by the Denver, 
Colorado Regional Office (RO) of the United States Department 
of Veterans Affairs (VA).  In that decision, the RO granted 
service connection for hearing loss and tinnitus in the right 
ear, and denied service connection for hearing loss and 
tinnitus in the left ear.

The veteran had two periods of active service between January 
1961 and December 1972.  The claims file does not contain 
service department documentation of the dates of veteran's 
service; and two sources of information provide slightly 
different dates.  In his August 2006 claim, the veteran 
reported service from January 1961 to November 1963, and from 
December 1964 to December 1972.  In the January 2007 rating 
decision, the RO indicated that the veteran served from 
January 1961 to January 1964, and from January 1965 to 
December 1972.  The issue presently before the Board on 
appeal does not depend on determining the exact dates of the 
veteran's service.


FINDINGS OF FACT

1.  The veteran was exposed to considerable weapons noise 
during service.

2.  Hearing in the left ear at a high frequency diminished 
during service.

3.  Affording the veteran the benefit of the doubt, current 
sensorineural hearing loss in the left ear is attributable to 
noise exposure during service.

CONCLUSION OF LAW

Left ear hearing loss was incurred in service.  38 U.S.C.A. 
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In August 2006, the veteran filed a claim for service 
connection for bilateral hearing loss and bilateral tinnitus.  
In a January 2007 rating decision, the RO granted service 
connection for right ear hearing loss and right ear tinnitus, 
and denied service connection for left ear hearing loss and 
left ear tinnitus.  The veteran appealed the denial of 
service connection for left ear hearing loss.

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Service connection may be granted for a disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).  When there is an 
approximate balance of positive and negative evidence 
regarding any issue material to the determination of a claim, 
VA shall give the benefit of the doubt to the claimant.  
38 U.S.C.A. § 5107.  Service connection for hearing loss is 
regulated at 38 C.F.R. § 3.385, which provides that:

For the purposes of applying the laws 
administered by VA, 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, or 4000 Hertz are 26 decibels or 
greater; or when speech recognition 
scores using the Maryland CNC Test are 
less than 94 percent.

38 C.F.R. § 3.385.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the United 
States Court of Appeals for Veterans Claims (Court) noted 
that 38 C.F.R. § 3.385, "does not preclude service 
connection for a current hearing disability where hearing was 
within normal limits on audiometric testing at separation 
from service."  5 Vet. App. at 159.  The Court explained 
that:

[W]hen audiometric test results at a 
veteran's separation from service do not 
meet the regulatory requirements for 
establishing a "disability" at that 
time, he or she may nevertheless 
establish service connection for a 
current hearing disability by submitting 
evidence that the current disability is 
causally related to service.

5 Vet. App. at 160.

The veteran reports that during service he was exposed to 
noise from artillery and machine gun fire.  He contends that 
hearing loss in both of his ears developed as a result of 
that noise exposure.  Service abstracts in the veteran's 
service medical records indicate that he served in artillery 
units during some periods of service.  In a January 1961 
medical examination for entrance into service, the veteran's 
hearing was measured as 15/15 bilaterally on a whispered 
voice test.  On audiological evaluation in January 1964, pure 
tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-10
-10
-10

-10
LEFT
-10
-10
-10

-10

On audiological evaluation in December 1964, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
10
35
LEFT
0
0
0
0
0

On audiological evaluation in January 1966, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0

35
LEFT
0
0
0

5

On audiological evaluation in May 1972, pure tone thresholds, 
in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
15

70
LEFT
15
15
15

25

On audiological evaluation in December 1972, pure tone 
thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
0

65
LEFT
0
0
0

20

After service, VA outpatient treatment notes from September 
2003 reflected the veteran's report of a history of bilateral 
hearing loss and bilateral tinnitus since 1966.  He indicated 
that his post-service employment was as a manufacturer's 
representative, selling automotive parts and supplies.  The 
treating practitioner found that the veteran had slight 
hearing loss, bilaterally.

The veteran submitted the report of a private audiological 
evaluation in September 2004; however, the audiometric 
findings are shown in graphic form instead of numeric form.  
The Board is precluded from applying these graphic results to 
the criteria of 38 C.F.R. § 3.385 in order to determine the 
severity of any hearing loss disability.  See Kelly v. Brown, 
7 Vet. App. 471 (1995). 

In 2005, a VA practitioner noted that the veteran had hearing 
aids.  In his August 2006 claim, the veteran asserted that he 
had bilateral hearing loss from exposure to excessive noise 
while serving as an artillery officer and as a forward 
spotter.

On a VA audiology examination in December 2006, the examiner 
reported having reviewed the veteran's claims file.  The 
veteran reported experiencing gradual deterioration of 
hearing sensitivity since his service in Vietnam.  He stated 
that he had served in the field artillery, and had been 
exposed to loud noises from artillery, bombs, explosions, and 
machine guns.  He indicated that he had not had significant 
exposure to excessive noise since separation from service.  
On audiological evaluation, pure tone thresholds, in 
decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
60
65
70
LEFT
15
40
55
60
65

Speech audiometry revealed speech recognition ability of 92 
percent in the right ear and 96 percent in the left ear.  The 
examiner found that the veteran had bilateral sensorineural 
hearing loss, moderately severe in the right ear, and mild to 
moderately severe in the left ear.  The examiner noted that 
right ear hearing loss had developed during service, and 
expressed the opinion that it was at least as likely as not 
that current right ear hearing loss was caused by military 
noise exposure.  The examiner noted that the veteran's left 
ear hearing had been normal at discharge from service, and 
expressed the opinion that current left ear hearing loss was 
not caused by military noise exposure.

In an October 2007 substantive appeal, the veteran wrote that 
during his service in the Army field artillery, he was 
regularly exposed to loud noises.  He stated that he served 
as a battery officer, and was exposed to the firing of 
artillery pieces.  He indicated that he served as a forward 
observer, and was as close as 50 feet from artillery fire and 
bombs, and as close as 5 feet from machine gun fire.

In February 2008, the veteran had a videoconference hearing 
before the undersigned Veterans Law Judge.  The veteran 
reported that during service that he was close to artillery 
pieces during training exercises.  He stated that in Vietnam 
he was a forward observer with a mechanized infantry unit, 
which included riding in the same vehicle with a constantly 
firing machine gun.  He indicated that he had light rubber 
ear plugs to use during training, but that it was not 
practical to use any ear protection in combat.  He reported 
that his post-service employment was in sales, and that he 
had not been exposed to loud noises in that work.  He related 
that since service he had experienced difficulty hearing in 
both ears.  He stated that he used hearing aids in both ears, 
and another device to help with hearing speech over the 
telephone.

The veteran currently has disabling hearing impairment in 
both ears.  His reports of noise exposure during service are 
credible, and his artillery service is supported by service 
records.  The veteran also credibly reports that he has not 
had significant post-service noise exposure.  His left ear 
did not have hearing impairment that reached the level of a 
disability during service; however, that does not preclude 
service connection.  See Hensley, supra.  Test results showed 
that the puretone threshold at a high frequency increased 
during service, and was significantly higher at separation 
than at entrance.  The history of noise exposure during 
service, the slight worsening of left ear hearing during 
service, and the current existence of bilateral noise-related 
hearing loss, all constitute evidence that the current left 
ear hearing loss is causally related to service.  The Board 
finds that the positive evidence balances the negative 
evidence, and grants service connection for left ear hearing 
loss.

The Board is granting the benefit sought on appeal.  
Therefore, it is not necessary to discuss VA's duties to 
notify or assist the veteran in substantiating the claim.  
See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2007).


ORDER

Entitlement to service connection for left ear hearing loss 
is granted.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs