Citation Nr: 1007293 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-36 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to March 1969. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Jurisdiction of the case was subsequently transferred to the RO in Portland, Oregon. FINDING OF FACT The Veteran's bilateral hearing loss can not be reasonably disassociated from his military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. 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; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 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 July 2007, the Veteran filed a claim seeking service connection for bilateral hearing loss and tinnitus. In October 2007, the RO issued a rating decision which granted service connection for tinnitus. The RO's October 2007 decision also denied service connection for bilateral hearing loss, and the Veteran filed a timely substantive appeal of this issue. The Veteran is seeking entitlement to service connection for bilateral hearing loss. He attributes his hearing disorder to his inservice acoustic trauma sustained from military noise. Specifically, he claims that he was exposed to loud noise from artillery fire, small arms fire, and explosive devices during his active duty service. Historically, the Veteran served on active duty in the Army from April 1967 to March 1969. His DD-214 listed his inservice specialty as Field Artillery Basic. The Veteran's service treatment records are negative for any complaints, symptoms, or diagnoses of bilateral hearing loss. The Veteran's January 1967 enlistment examination noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) 0 (10) - 20 (25) LEFT -5 (10) -5 (5) -5 (5) - -5 (0) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In this case, the Veteran's enlistment examination stated that it was conducted under the prior ASA standards. The ASA results are the figures on the left of each column and are in parentheses. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures not in parentheses.) The report of his November 1968 separation examination noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 20 LEFT 10 10 10 - 15 In September 2007, the Veteran underwent a VA audiological examination. The Veteran reported that he was in the artillery for his entire period of service and the most significant noise exposure came from firing big guns during training. After discharge, he worked as a nurse for 12 years and did some crabbing in Alaska. He also reported working as a semi-truck driver for over 20 years until he was retired. The audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 70 70 LEFT 20 20 30 45 55 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 94 percent in the left ear. Following a review of the claims file, the examination report concluded with a diagnosis of mild sloping to severe sensorineural hearing loss, bilaterally. The audiological examination revealed that the Veteran currently has a hearing disability for VA purposes. See 38 C.F.R. § 3.385. The examiner opined that it was not likely that the Veteran's current hearing loss was due to his military noise exposure. In support of this conclusion, the examiner stated that the Veteran had normal hearing sensitivity, bilaterally, at separation; therefore, he had not incurred a permanent hearing loss as a result of military noise exposure. The examiner also noted that additional noise exposure, including ageing and health condition since military separation, were likely contributing factors in the Veteran's hearing loss. During his June 2009 hearing before the Board, the Veteran testified that the onset of his hearing loss was during his military service when he sustained acoustic trauma due to loud noise from artillery and gun firings. The Veteran stated that his hearing loss had consistently and progressively worsened ever since his military service. He also testified that his post-service noise exposure was limited when he worked as a nurse and a truck driver. At the hearing, the Veteran submitted a May 2009 private audiology report. The private audiologist noted that the Veteran had moderate to severe hearing loss and opined that such hearing loss was most likely due to his military noise exposure as an artillery man. Based on the totality of the evidence, and with application of the benefit of the doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran currently has bilateral hearing loss which was incurred during his active military service. As for his reported exposure to noise from artillery and gun firings, the Veteran's service records show that his military specialty was field artillery cannoneer. His Form DD-214 also shows that he was awarded Expert M-14 Rifle Badge. This is consistent with the Veteran's contentions that he was exposed to significant acoustic trauma in service. As such, the Board finds the Veteran's contentions regarding his military noise exposure to be credible. Additionally, as service connection for tinnitus has been previously granted, military acoustic trauma is conceded. In this case, a VA examiner and a private audiologist have offered contrasting opinions regarding the etiology of the Veteran's current hearing loss. As noted, the private audiologist has linked the Veteran's current hearing loss to his military service. While the audiologist appears to have relied upon the Veteran's reported history, as opposed to a review of the claims file, the Board notes that the Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as an in-service exposure to artillery noise or a decrease in hearing. See Layno v. Brown, 6 Vet. App. 465 (1994). It is further noted that the Board may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Washington v. Nicholson, 19Vet. App. 362, 368 (2005); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). While the Veteran's accounts are not supported by a contemporaneous medical history, a medical opinion cannot be disregarded merely because the rationale was based on a history as provided by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The September 2007 VA examiner, following a review of the claims file, provided a contrasting opinion. While the opinion was well-reasoned and supported by a rationale consistent with other evidence of record, in formulating an opinion the examiner relied upon the fact that the Veteran's service treatment records were negative for hearing loss, contrary to the holding in Hensley v. Brown, 5 Vet. App. 155 (1993), and as codified at 38 C.F.R. § 3.303(d). See Hensley, 5 Vet. App. at 159-60 (noting that although hearing loss is not shown in service or at separation from service, service connection can still be established if medical evidence shows that it is actually due to incidents during service). Accordingly, the Board finds that the medical opinions of record, at the least, in relative equipoise. Both opinions were consistent with other evidence of record. While the Board's review of the Veteran's service treatment records fails to show in-service diagnosis or treatment for hearing loss, the Veteran is competent to report symptoms, as well as events to which he had first-hand knowledge. The evidence in this case is evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs