Citation Nr: 1301385	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  10-30 206	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


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

D. Havelka, Counsel


INTRODUCTION

The Veteran's active military service extended from November 1962 to November 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which in part, denied service connection for bilateral hearing loss   


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, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein.  See 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012).  This is so because the Board is taking action favorable to the Veteran by granting the issue at hand.  As such, this decision poses no risk of prejudice to the Veteran.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §  1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  Service connection for certain diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Impaired hearing is considered a disability for VA purposes when: the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three 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. 

The Veteran claims entitlement to service connection for bilateral hearing loss.  He asserts that he experienced acoustic trauma in the form of aircraft noise exposure during active service and that this is the cause of his current hearing loss. 

The Veteran served in the Air Force from November 1962 to November 1966.  His separation papers, DD 214, indicate that his military specialty at the time of his separation from service was as personnel clerk.  The Veteran testified before the Board in October 2011that he initially served on the flight line in the Air Force on a crash rescue crew and the he was only moved to an office job at the end of his enlistment as he was color blind.  Review of the other service personnel records of record confirms that the Veteran trained and served on a crash rescue crew in the Air Force, and the he was diagnosed as being color blind and his duties were subsequently modified.  Accordingly, the Board finds that the Veteran was exposed to noise as he reports. 

The separation examination in October 1966, pure tone thresholds, in decibels were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10 (25)
15 (25)
5 (15)
5 (15)
20 (25)
LEFT
0 (15)
0 (10)
0 (10)
10 (20)
20 (25)

(Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.).  The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating a degree of hearing loss.  See Hensley v. Brown 5 Vet. App. 155, 157 (1993).  The converted results show hearing loss in both ears on separation from service.  

A July 1990 private medical treatment record reveals that the Veteran's private physician had been following the Veteran for hearing loss and that he had been evaluated at a private audiologist.  

In July 2010 a VA audiology examination of the Veteran was conducted.  On testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
55
95
100
LEFT
35
40
40
70
100

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 68 percent in the left ear.  These test results reveal the presence of a current bilateral hearing loss disability.  38 C.F.R. § 3.385.  The audiologist indicated that the Veteran's current hearing loss disability was not caused by military noise exposure because the Veteran's separation examination audiogram was normal.  As indicated above, the converted values on the Veteran's separation audiogram reveal the presence of hearing loss in both ears on separation.

In April 2011, a private audiology examiner indicated that "[i]t cannot be concretely stated whether this hearing loss was definitely due to noise exposure due to the lack of hearing testing prior to going in the service."  

The Veteran's records were reviewed by a private otolaryngologist in June 2011.  The physician stated that his opinion was to a "reasonable degree of medical certainty" that the Veteran's current hearing loss was due to noise exposure and that the noise exposure was sustained on active military service.  

The Veteran reports continuing symptoms of decreased hearing from the noise exposure during service to the present.  His statements as to what he experienced in service and the resulting symptoms is competent evidence.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  Additionally, the Board finds the Veteran's statements have been internally consistent and consistent with the other evidence of record, and therefore are credible.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record).  

Although there is a negative VA medical opinion that the Veteran's hearing loss is not related to service, this opinion was based on conclusion that the 1966 separation audiology test revealed "normal" results, which is incorrect.  See Hensley, 5 Vet. App. 155 at 157.  When converted to current standards, the 1966 test results reveal a degree of hearing loss in both ears.  Moreover, service connection may be granted for hearing loss found after service discharge, when all the evidence, including that pertinent to service, establishes that it is related to service.  38 C.F.R. § 3.303(d).  As the VA examiner was based on an inaccurate factual finding, and failed to consider all of the evidence of record, to include the Veteran's statements of experiencing a decrease in hearing while in service and thereafter, the Board finds the VA opinion is of limited probative value.  

The evidence of record shows that the Veteran has a current hearing loss disability for VA purposes.  38 C.F.R. § 3.385.  The evidence also shows competent and credible evidence of noise exposure in service.  Additionally, the private physician found that based on a review of the Veteran's records, the history of the Veteran's service, and the Veteran's account of the noise he was exposed, that his current hearing loss was due to his military service.  Accordingly, service connection for bilateral hearing loss is warranted.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
JOY A. MCDONALD 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs