Citation Nr: 1300272 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-08 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to February 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A videoconference hearing was held in November 2012 before the undersigned Veterans Law Judge, sitting in Washington, D.C. Testimony provided at that hearing has been considered by the Board in making its determination. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2011). FINDING OF FACT The competent and credible evidence establishes continuity of the Veteran's right ear hearing loss following his military service. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for right ear hearing loss. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. II. Service Connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2012). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, including sensorineural hearing loss and degenerative arthritis, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Right Ear Hearing Loss The Veteran contends that his current right ear hearing loss was caused by in-service exposure to loud explosions, to include those he experienced during combat at the Normandy beachhead. At the outset, the Board notes that the Veteran's DD-214 shows that the Veteran was a radarman during World War II, and that he served on numerous vessels. He was awarded numerous medals and participated in the invasion of Normandy. See the 2007 statements from fellow service men, his personnel records, and the October 20007 VA Memorandum. Additionally, the Board highlights that service connection is already in effect for the Veteran's left ear hearing loss. See the December 2007 rating decision. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 5000, 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 (2012). Hensley v. Brown, 5 Vet. App. 155 (1993). Because there is no competent evidence showing that the Veteran's right ear hearing loss was manifest to a degree of 10 percent or more during the first year following separation from service, service connection on a presumptive basis is not warranted in this case. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran's service treatment records (STRs) are negative for report of, treatment for, or diagnosis of hearing loss. Whispered voice testing at induction and separation was 15/15. Post STRs include private and VA documents dated from the early 1990s to the present day. In 1991, the Veteran was seen at a private facility for right ear hearing loss. He gave a history of bilateral tinnitus. An "old diagnosis" of Meniere's disease was noted, which was consistent with his report of vertigo and problems with balance for the past twenty years. On examination, the cranial nerves were intact, excepting for the right side which had practically no hearing and a speech discrimination score of 32 percent. The average hearing in the right ear was about 70 decibels in the speech frequencies. The left ear was normal with an average of 10 decibels in the speech frequencies, and the usual high tone loss compatible with age 67. The speech discrimination in the left ear was 100 percent. Speech reception threshold, as tested, showed 95 percent decibel loss on the right and 10 percent decibel loss on the left. The diagnosis was deafness in the right ear attributed to a 2 cm acoustic neuroma. He was admitted for removal of the neuroma. Meniere's disease of 25 years was noted. Surgery was performed in September 1991, and the Veteran did well postoperatively. On VA authorized audiological evaluation in May 2007, the Veteran reported a history of noise exposure to gun and cannon fire as a radarman during military service. He denied post service noise exposure as he worked in management/sales for 35 years. He also reported that that he had previously undergone right acoustic neuroma removal resulting in complete loss of right ear hearing. Testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105 105 105 105 105 LEFT 25 25 40 55 60 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 96 percent in the left ear. The examiner's diagnoses included profound sensorineural hearing loss in the right ear and high frequency sensorineural hearing loss in the left ear. She opined that the right ear hearing loss was secondary to acoustic neuroma removal and not the result of in-service noise exposure. She further noted, however, that his left ear hearing loss was at least as likely as not of service origin. In a December 2007 rating decision, service connection was established for left ear hearing loss. A noncompensable rating was assigned. Service connection was denied for right ear hearing loss, and this appeal ensued. Records submitted after the 2007 rating decision include private audiometric test reports from 2012 which continue to show profound right ear hearing loss. The Veteran and his daughter provided testimony at a video conference hearing in November 2012. The Veteran reiterated his contentions. Notably, his daughter recalled that her father had had problems with his hearing since the 1960s. She indicated that his hearing difficulty was very noticeable even prior to his neuroma surgery. The Board notes that, in adjudicating a claim, it is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran's right ear hearing loss was caused by his in-service noise exposure. In making this determination, the Board notes that the Veteran is competent to report the symptoms of hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is certainly able to state that he experienced diminished hearing since active service. The Veteran is also competent to report that he was exposed to gunfire noise during service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge). Moreover, the Board finds the reports from the Veteran and his daughter as to continuity of symptomatology since service to be credible. The Veteran has consistently reported the incidents in service that caused his hearing loss. It is also within the daughter's realm of personal knowledge as to post service hearing problems that the Veteran experienced. The undersigned found both of their testimony in this respect to be credible. The fact that service connection has already been granted for the Veteran's left ear hearing loss lends additional credence to the notion that he has been experiencing hearing loss (right or left) since his established in-service noise exposure. After a careful review of the all of the medical and lay evidence of record, the Board, in its role as a finder of fact, finds that the Veteran's reports of in-service noise exposure and continuity of symptomatology since service are persuasive in determining the onset and etiology of his right ear hearing loss. While there is a medical opinion (VA audiologist in May 2007) that does not support the claim, the Board has concluded that it is of little probative value because the opinion did not acknowledge or otherwise consider the Veteran's reports of continued hearing difficulties in the years after service and prior to his acoustic trauma. A medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Accordingly, considering all of the evidence of record, the Board finds that the Veteran's current right ear hearing loss cannot be reasonably disassociated from his noise exposure during service, and as such, he meets all of the elements required for service connection. As demonstrated by the post service audiological examination results of record, he currently has hearing loss by VA standards. See 38 C.F.R. § 3.385 (2012). Additionally, he has consistently reported the incidents in service that caused this condition, as is evidenced by his statements on his original service connection claim and on post service private and VA records. Moreover, he has provided competent and credible evidence of a continuity of symptomatology since service. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102 (2012). Therefore, the Veteran's claim for service connection for right ear hearing loss is granted. ORDER Entitlement to service connection for right ear hearing loss is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs