Citation Nr: 0814843 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 02-05 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for hearing loss of the left ear, to include being due to the veteran's service- connected right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active duty in the US Air Force from September 1974 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDING OF FACT The veteran's current left ear hearing loss is related to his period of active duty. CONCLUSION OF LAW Left ear hearing loss was incurred in or caused by the veteran's military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.385 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran given the favorable nature of the Board's decision with regard to the issue of entitlement to service connection for hearing loss of the left ear. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Moreover, in the case of sensorineural hearing loss, service connection is granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in-service disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated that ". . . a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The veteran's service records indicate that he served in the Air Force Honor Guard, and with a supply unit at Elmendorf AFB, Alaska. The veteran avers that because of his exposure to rifle shots during military burials and exposure to airplane engine noises while at Elmendorf AFB, he began losing his hearing in both ears. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Even though hearing loss for VA purposes may not be demonstrated at separation, service connection for a current hearing loss disability can be established by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The veteran underwent a military enlistment medical examination in June 1974. An audiological examination was a part of that examination. The results from that examination, measured in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 10 0 0 0 5 On service separation examination, another audiological examination was performed in September 1980. The results from that examination were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 25 25 LEFT 20 20 20 25 15 In this case, comparison of the veteran's entrance examination and his separation examination shows a decrease in hearing acuity. See id. Nineteen years after military service, the veteran underwent a VA audiological examination. In January 1999, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 35 35 50 50 LEFT 15 30 35 40 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. A second VA examination was performed in May 2004. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 50 55 LEFT 40 40 45 45 60 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 80 percent in the left ear. Another VA audiological examination in February 2007, found pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 60 60 LEFT 25 35 40 45 55 Speech audiometry revealed speech recognition ability of 80 percent, bilaterally. The VA examiner stated that since the veteran's service medical records showed "normal" hearing in service and that there were no complaints involving hearing loss of the left ear, and because the veteran purportedly did not have exposure to loud noises, including weapons fire, in service, the audiologist was unable to relate the condition to the veteran's service. In determining whether evidence submitted by a veteran is credible the Board may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The veteran's statements that he has proffered since 1998 have not been contradictory. Moreover, since the veteran filed his claim, his recitation of the symptoms produced by the hearing loss of the left ear, and how long the condition has bothered him has remained consistent. The Board veteran's written evidence is credible, probative, and it adds weight to the overall claim. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."). Here the veteran has provided credible statements with respect to his hearing disability. A VA audiologist has provided an opinion that the veteran's left ear hearing loss is not related to his military service. However, the Board finds the opinion deficient in that it does not discuss previous findings that found hearing loss of the right ear etiologically related to the veteran's military service, the audiologist has not provided supporting medical information that substantiates the assertions made; and the audiologist relied on a finding of normal hearing for VA purposes on service separation examination in forming the opinion. Additionally, in the opinion report, the audiologist stated that the veteran was never exposed to gunfire, and he said that he reviewed the claims folder. A more focused examination of the claims folder reveals that the veteran was exposed to rifle fire whenever he performed his duties as an Honor Guard Airman at funerals. The examiner further indicated that because the veteran worked in supply, he was never exposed to loud noises while stationed at Elmendorf AFB. However, the veteran was assigned to the 21st Transportation Squadron at Elmendorf, where he worked around loud machinery, including airplane engines. Hence, the Board finds that the VA examiner's opinion is inconsistent with the veteran's actual service. See Kowalski v. Nicholson, 19 Vet. App. 171, 179-80 (2005). The Board will therefore rely on the veteran's statements and the decrease in his hearing ability since his enlistment in order to resolve this matter. In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Accordingly, the benefit of the doubt in resolving the issue on appeal shall be given to the veteran, and therefore, service connection for left ear hearing loss is warranted. ORDER Service connection for left ear hearing loss is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs