Citation Nr: 1237157	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  10-01 798	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from January 1968 to September 1970.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In March 2012 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.


FINDING OF FACT

1.  The Veteran had acoustic trauma in service and has provided credible lay evidence of continuity of hearing loss symptoms in service and since service. 

2.  The Veteran's bilateral hearing loss has not been dissociated from his active service.


CONCLUSION OF LAW

Bilateral hearing loss disability was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable decision to grant the Veteran's claim of service connection for bilateral hearing loss, any deficiency as to VA's duties to notify and assist, as to that issue, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot.

Applicable Laws-Service connection

Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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).

Service connection for hearing loss (as an organic disease of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  38 C.F.R. § 3.303(b).  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). 

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

At his March 2012 Board hearing the Veteran indicated that he had no problems with his hearing prior to his entrance into service.  The Veteran stated that he first started experiencing problems with his hearing when he came back from 23 days of constant enemy attack on Fire Base Ripcord in Vietnam, sometime around March 1970.  He indicated that he was often just 30 feet away from howitzers going off and had personally used a M79 grenade launcher.  At the time of his separation from service he told medical personnel that he had been under attack for more than 20 days and had trouble hearing.  The Veteran stated that the medic informed him that as he was young his hearing would be fine and that his hearing would be restored back to normal levels after a period of time.  The Veteran stated, however, that he had trouble hearing when he left the service and returned home.  He again stated that he had not had hearing problems prior to entering service.  The Veteran asserted that the October 2008 VA examiner did not ask him any questions pertaining to exposure to noise during service.  

The Veteran's January 1968 service enlistment examination noted that the Veteran's ears were normal.  Audiometric findings were, in pertinent part, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
-5
-5
10
5
20
LEFT
5
-5
15
20
35

The service treatment records contain no complaints or treatment related to hearing loss.

The Veteran's September 1970 service separation examination noted that the Veteran's ears were normal and indicated bilateral whisper test results of 15/15; there was no audiological testing.

At an October 2008 VA audiological examination, the reported audiometric findings demonstrated right ear and left ear hearing loss disability for VA purposes.

While the Board acknowledges that chronic hearing loss was not demonstrated in service, as noted, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).  In this regard, the Board finds that the Veteran has given consistent and credible testimony that he had acoustic trauma in service and hearing difficulties just prior to his separation from service and thereafter.  In short, the Veteran has provided credible evidence of a continuity of hearing loss symptomatology during and after service.  38 C.F.R. § 3.303(b).

While the VA opinion of record is not favorable to the Veteran, the Board notes that the October 2008 VA examiner essentially acknowledged ("Unfortunately, audiometric testing was not performed at separation from service") that providing an opinion in this case was difficult in light of no audiometric findings having been obtained at the time of the Veteran's separation from service.  Further, it appears that the October VA examiner did not review the Veteran's written statements submitted in July 2008.  The July 2008 statements are similar and consistent with the assertions and testimony given by the Veteran during his March 2012 Board hearing.  Accordingly, the Board finds that these factors lessen the probative value of the October 2008 VA examiner's opinion.  Additionally, the Board notes that it is unable to unequivocally state that the October 2008 VA opinion did not indicate that the Veteran's hearing had been aggravated by his inservice noise exposure.

While it may be argued that the competent evidence is in equipoise as to a nexus to service, in such cases, doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for bilateral hearing loss is warranted.

ORDER

Service connection for bilateral hearing loss is warranted.




____________________________________________
K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs