Citation Nr: 1102168 Decision Date: 01/19/11 Archive Date: 01/26/11 DOCKET NO. 09-25 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to January 1972, including service in the Republic of Vietnam from May 1971 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issue of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma while in service. 2. Symptoms of bilateral hearing loss were chronic in service. 3. Symptoms of bilateral hearing loss have been continuous since service separation. 4. The Veteran currently has hearing loss in each ear to an extent recognized as a disability for VA purposes. 5. The Veteran's current bilateral hearing loss is etiologically related to exposure to acoustic trauma in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The claim of service connection for bilateral hearing loss has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a) (2010); see also 38 U.S.C.A. § 1154 (West 2002). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran asserts that his current bilateral hearing loss is the result of noise exposure while serving as motor transport operator and being exposed to noises from gunfire, artillery, aircraft, and heavy equipment such as bulldozers. First addressing the question of current disability, the Board finds that the Veteran has bilateral hearing loss disability. A June 2008 private audiological examination and a January 2009 VA audiological examination results establish hearing loss "disability" in each ear as defined in 38 C.F.R. § 3.385. In June 2008, on private audiological examination, the Veteran was diagnosed with severe to profound hearing loss for 2000-8000 Hz in the right ear and severe hearing loss for 1000-8000 Hz in the left ear. The diagnosis was sensorineural hearing loss in both ears. In January 2009, on VA audiological examination, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 10, 65, 65, and 70 decibels, respectively, with an average puretone threshold of 52 decibels. The speech recognition score for the right ear was 84 percent. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 5, 30, 70, 85, and 95 decibels, respectively, with an average puretone threshold of 70 decibels. The speech recognition score for the left ear was 72 percent. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran was exposed to the injury of acoustic trauma in service and symptoms of bilateral hearing loss were chronic in service. The Veteran served as a motor transport operator in service. See VA Form DD-214. On service entrance audiological examination, in June 1970, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 5, 5, 0, 10, and 30 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 15, 5, 5, 25, and 50 decibels, respectively. The examination noted defective hearing. In March 1971, the Veteran was placed on permanent profile for bilateral hearing loss. The Veteran could not be given an assignment involving habitual or frequent exposure to loud noises or firing of weapons and that he must wear earmuffs to fire for POR qualification. An October 1971 service treatment record reported a history of noise exposure in service and gave a provisional diagnosis of acoustic trauma. On service separation audiological examination, in January 1972, puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were 10, 20, 20, 10, and 10 decibels, respectively. Puretone thresholds at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz in the left ear were 10, 10, 20, 10, and 20 decibels, respectively. The Board finds that such audiometric threshold increases in hearing loss at various frequencies in both ears during service reflects evidence of "chronic" symptoms of hearing loss in service, as contemplated by 38 C.F.R. § 3.303(b). The Board also finds that the Veteran experienced continuous symptoms of hearing loss since service separation. The Veteran has credibly reported continuous post-service hearing loss. The Board notes that the Veteran is competent to provide a report of continuity of hearing loss symptoms since service. His assertion of a chronic disability dating back to service is consistent with the evidence of record, notably the evidence of in-service noise exposure, and the in-service assessment of noise exposure, assessment of defective hearing, worsening of hearing as indicated by higher audiometric thresholds, and placement on profile. See Layno, 6 Vet. App. at 470 (a veteran is competent to report that on which he or she has personal knowledge). The Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current bilateral hearing loss disability is related to exposure to acoustic trauma in service. The Veteran was specifically diagnosed with bilateral hearing loss in active service. The evidence of record also demonstrates acoustic trauma in service, assessment of defective hearing in service, placement on profile in service, and some worsening of hearing loss in both ears during service, as reflected by higher puretone thresholds for specific frequencies in both the right and left ear at service separation. With chronic disease as such in service, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." 38 C.F.R. § 3.303(b). The June 2008 private audiological examination did not provide a nexus opinion for the Veteran's bilateral hearing loss. In the January 2009 VA audiological examination, the examiner opined that the issue of hearing loss could not be resolved without resorting to speculation. This was based on the reasoning that the Veteran had decreased high frequency sensitivity in both ears upon service enlistment examination in June 1970, and had hearing within "normal" limits upon separation examination in January 1972. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (an examiner's conclusion that an opinion would be speculative cannot be relied upon unless the examiner has explained the basis for such an opinion or the basis is otherwise apparent from the evidence of record). The January 2009 VA examiner's statement regarding bilateral hearing loss in service is also factually inaccurate. There was evidence of worsening of hearing in service. The record reflects the Veteran obtained treatment for bilateral hearing loss symptoms in service and was put on profile in service due to bilateral hearing loss symptoms. The January 2009 VA audiological examination did not address the full and accurate history of acoustic trauma, chronic hearing loss symptoms in service, and continuous bilateral hearing loss symptoms since service separation. See Swann v. Brown, 5 Vet. App. 229 (1993) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for bilateral hearing loss. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs