Citation Nr: 0814005 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-13 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from August 1971 to January 1972 and from December 1982 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision, in part, denied service connection for bilateral hearing loss. In March 2008, a hearing was held before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran was exposed to acoustic trauma in the form of noise exposure during service aboard an aircraft carrier during active service. 2. Service medical records reveal that the veteran had some degree of hearing loss during active service as evidenced by audiograms dated in 1986. 3. A private audiogram dated August 2004 reveals that the veteran has a current hearing loss disability. 4. A December 2004 private medical opinion relates the veteran's current hearing loss disability to noise exposure during active service. CONCLUSION OF LAW Bilateral hearing loss was incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit 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 will not be further discussed. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1137. In addition, service connection may be granted for any 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). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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, injury, or service-connected disability and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court of Appeals for Veterans Claims (Court) has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The veteran's claim for service connection essentially revolves around hearing loss caused by noise exposure during his second period of active service from 1982 to 1986. During this period of time the veteran was in the Navy and was stationed aboard a ship. He claims that he had noise exposure during this period of service which caused a current hearing loss disability. In August 1982, entrance examination of the veteran was conducted. His ears and ear drums were evaluated as normal. Audiological evaluation was conducted and revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 15 15 LEFT 10 10 5 10 30 On medical examination in November 1986 another audiological evaluation was conducted and revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 5 25 30 LEFT 20 20 15 30 35 Because the threshold for normal hearing is from 0 to 20 dB, with higher threshold levels indicating a degree of hearing loss, these results show that the veteran had hearing loss during active service. See, Hensley v. Brown 5 Vet. App. 155, 157 (1993). The evidence of record supports that the veteran was exposed to noise during active service and audiology test results show some degree of hearing loss during active service. The veteran must next show a current hearing loss disability within the definition as established by VA regulations. Impaired hearing is considered a disability for VA purposes 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 (2007). The veteran submitted a copy of a private audiological evaluation which was conducted in October 2003; pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 45 50 LEFT 20 15 50 45 40 These audiogram results clearly show readings in excess of 40 decibels or greater in each ear within the specified frequencies. Accordingly, this evidence shows that the veteran has a current hearing loss disability within the definition established by 38 C.F.R. § 3.385. Finally, a letter dated December 2004 from a private physician indicates that the veteran has a current diagnosis of bilateral sensorineural hearing loss which is related to his noise exposure during active service in the Navy. Accordingly, the evidence supports a grant of service connection for bilateral hearing loss. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs