Citation Nr: 1007237	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  08-34 334	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, 
Wyoming


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

S. Punia, Law Clerk




INTRODUCTION

The Veteran had active service from August 1953 until August 
1956 and from February 1958 and February 1975.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from an April 2008 rating decision of the 
Department of Veterans Affairs (VA), Regional Office (RO) in 
San Diego, California.  The file was subsequently transferred 
to the RO in Cheyenne, Wyoming.

The Veteran had a hearing before the undersigned in January 
2009.  A transcript of that proceeding is associated with the 
claims folder.


FINDINGS OF FACT

1.  The Veteran was exposed to noise during active service.

2.  The evidence is at least in equipoise as to whether the 
currently diagnosed bilateral hearing loss is causally 
related to active service.  


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active service. 38 
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107(b) 
(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Preliminarily, it is noted that the Veterans Claims 
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 
2096 (Nov. 9, 2000), became law in November 2000, and was 
thereafter codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 
(West 2002). To implement the provisions of the VCAA, VA 
promulgated regulations codified, in pertinent part, at 38 
C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). The VCAA has also 
been the subject of various holdings of Federal courts.

The duty to notify has been substantially complied with in 
this case. As the Board herein grants the claim for service 
connection for bilateral hearing loss, the need to discuss 
VA's efforts to comply with the VCAA, its implementing 
regulations, and the interpretive jurisprudence is obviated.

Discussion

The Board has reviewed all of the evidence in the Veteran's 
claims folder.  Although the Board has an obligation to 
provide reasons and bases supporting this decision, there is 
no need to discuss, in detail, all the evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's analysis 
below will focus specifically on what the evidence shows, or 
fails to show, as to the claim.  

The Veteran is claiming entitlement to service connection for 
bilateral hearing loss incurred due to exposure to gunfire in 
his duties as a rifleman in an infantry squad and while 
serving on a flight-line.

Under the relevant laws and regulations, service connection 
may be granted for a disability resulting from disease or 
injury incurred in or aggravated by active service. 38 
U.S.C.A. § 1110 (West 2002).  If a chronic disease is shown 
in service, subsequent manifestations of the same chronic 
disease at any later date, however remote, may be service 
connected, unless clearly attributable to intercurrent 
causes. 38 C.F.R. § 3.303(b) (2009).  However, continuity of 
symptoms is required where a condition in service is noted 
but is not, in fact, chronic or where a diagnosis of 
chronicity may be legitimately questioned. 38 C.F.R. § 
3.303(b) (2009).

Further, service connection may also 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 U.S.C.A. § 1113(b) (West 
2002); 38 C.F.R. § 3.303(d) (2009).  The Board must determine 
whether the evidence supports the claim or is in relative 
equipoise, with the appellant prevailing in either case, or 
whether the preponderance of the evidence is against the 
claim, in which case, service connection must be denied. 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In evaluating the Veteran's hearing loss claim, it is 
observed that the threshold for normal hearing is from 0 to 
20 decibels, with higher threshold levels indicating some 
degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 
157 (1993).  
Additionally, it is noted that 38 C.F.R. § 3.385 defines when 
impaired hearing will be considered a "disability" for the 
purposes of applying the laws administered by VA.  The 
regulations provide that hearing loss will be considered 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 thresholds for at 
least 3 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.

In the present case, the Veteran contends that his current 
hearing loss and tinnitus are causally related to his active 
service.  In his August 2007 application, the Veteran stated 
he was exposed to noise from his duties on the flight line in 
the air force.  In a November 2007 statement in support of 
the claim, the Veteran further explained that he was in the 
U.S. Army and infantry from 1953-1956 and was exposed to loud 
rifle noises during this time.  Moreover, from 1956-1975 he 
was on the flight line in the U.S. Air force, which exposed 
him to loud jet engine noise.  Additionally, the Veteran 
indicated in his substantive appeal that his duties 
specifically involved refueling aircraft of all kinds and 
while performing these activities he was exposed to engine 
noises.  Furthermore, the Veteran's DD 214 lists his 
occupation as fuel supervisor, which is consistent with the 
type of noise exposure contended.

Based on all of the above, the Board concludes that the 
Veteran was exposed to noise during active service.  Indeed, 
his contentions of noise exposure are deemed credible and 
appear consistent with the circumstances of his service, as 
indicated in official military records.  See 38 U.S.C.A. § 
1154(a).

Having determined that the Veteran was exposed to noise 
during service, the Board must now consider whether the 
currently-diagnosed hearing loss and tinnitus are causally 
related to such exposure.  To this end, the medical evidence 
of record has been reviewed, and will be discussed in 
pertinent part below.

Test results from the Veteran's first tour of duty in from 
August 1953 to July 1956 indicated normal whispered voice 
findings upon both enlistment and separation. The Veteran's 
February 1958 enlistment examination for his second tour of 
duty indicated a 15/15 (normal) whispered voice finding.  
However, audiometric testing conducted starting in July 1959 
indicated varying degrees of hearing loss.  The results of 
the Veteran's audiometric testing in July 1959 are as 
follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
10
5
10
25
LEFT
0
5
20
30
45

In evaluating the above results, it is again noted that the 
threshold for normal hearing is from 0 to 20 decibels, and 
higher threshold levels indicate some degree of hearing loss. 
Hensley, 5 Vet. App. 155, 157 (1993).  Thus, some hearing 
loss was shown during service as to both the right and left 
ear.  Furthermore, audiometric testing was conducted in July 
1960, April 1962, March 1963, and May 1963.  The results of 
these audiometric testing's varied significantly, both in 
every case some clinical hearing loss was shown.  A final 
audiometric testing during service was conducted in March 
1974, a year prior to separation.  The results of the 
Veteran's audiometric testing at that time were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
0
15
35
25
LEFT
0
5
0
0
0

In evaluating these results, it is noted that some hearing 
loss was shown in the right ear.  

Following the Veteran's final separation from active service 
in 1975, there is no showing of complaints or treatment for 
hearing loss until August 2007, when the Veteran filed his 
claim.  VA audiometric testing conducted in March 2008 showed 
impaired hearing for VA compensation purposes under 38 C.F.R. 
§ 3.385 for both ears, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
60
70
80
LEFT
10
20
65
80
80

The examination also indicated tinnitus.  Thus, the evidence 
establishes current bilateral hearing loss disability.  
Furthermore, the record as a whole is at least in equipoise 
as to whether the current disability is due to active 
service.  Indeed, there is no dispute that the Veteran was 
subjected to extensive noise exposure during service and the 
audiometric testing during service does reveal clinical 
hearing loss, even if not to the level of 38 C.F.R. § 3.385.  
Although there were some discrepancies when comparing the 
various in-service audiometric findings, including a 
separation examination in 1974 which did not reveal hearing 
loss in the right ear, there is enough in-service evidence of 
clinical hearing loss to resolve 
reasonable doubt in the Veteran's favor.    Therefore, the 
claim for bilateral hearing loss is granted.

In allowing the claim, the Board acknowledges the negative 
opinion provided by the VA examiner in March 2008.  The 
examiner's opinion was based on the fact that the Veteran had 
normal whispered voice hearing and audiometric testing was 
non-disabling per 38 C.F.R. § 3.385 at the time of separation 
from active duty.    However, the Board notes that it is not 
necessary for the requirements of 38 C.F.R. § 3.385 to have 
been met at separation, as long as there is some showing of 
decrease in auditory acuity and current impaired hearing loss 
for VA compensation purposes.
Moreover, the Board discounts the March 2008 examiner's 
opinion as it appears to be based on an inaccurate 
interpretation of the audiometric data.  Indeed, it appears 
that the examiner neglected to realize that the data 
indicated varying degrees of hearing loss throughout the 
Veteran's time in service.  Moreover, a year prior to 
separation audiometric testing indicated mild hearing loss in 
the right ear.  As his discussion did not acknowledge these 
significant facts, his conclusion is of diminished probative 
value.  Additionally, the examiner stated that it was at 
least as likely as not that the Veteran's tinnitus was 
related to military noise exposure.  Thus, the examiner did 
concede that the Veteran incurred some disability in his ears 
due to military noise exposure.  

In sum, the record is at least in equipoise as to whether 
current hearing loss is causally related to active service.  
Thus, the claims are granted.  38 U.S.C.A. § 5107; Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is granted, 
subject to governing criteria applicable to the payment of 
monetary benefits.



____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs