Citation Nr: 1305829 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 10-42 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. (In August 2009, the Veteran withdrew from appeal a claim for a higher rating for headaches, and later that month indicated that he was satisfied with the award of a 20 percent rating for service-connected scarring. Consequently, these issues are no longer on appeal.) The Veteran testified before the undersigned at an April 2011 video conference hearing; a transcript of that hearing is of record. At his Board hearing, the Veteran submitted additional medical evidence along with a waiver of review by the AOJ. 38 U.S.C.A. § 20 .1304 (2012). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during his service in the Republic of Vietnam. 2. Bilateral hearing loss is likely the result of acoustic trauma during active duty. CONCLUSION OF LAW The Veteran likely has bilateral hearing loss that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303(a). Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, certain chronic diseases, such as organic disease of the nervous system (including sensorineural hearing loss), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be 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, 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 making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. A September 2009 VA audiological evaluation showed pure tone thresholds for the right ear as 15, 10, 60, 80, and 95 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Pure tone thresholds for the left ear were 10, 5, 20, 55, and 75 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition was 72percent in the right ear and 100 percent in the left ear. Thus, current hearing loss as defined by VA has been demonstrated. See 38 C.F.R. § 3.385. The Veteran claims that his hearing loss began when he was shot in the back of the head in January 1970, is related to noise exposure in combat, and has continued since that time. During his April 2011 hearing, he reported that for the 10 1/2 months that he was in Southeast Asia, he was involved in many fire fights that included noise exposure to a M60 machine gun, artillery shells, grenades, and rocket propelled grenades. He also reported that in January 1970, he was shot in the back of the head. The "combat presumption" means that in the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The phrase "engaged in combat with the enemy" requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). The Veteran's DD Form 214 confirms that he served in Vietnam from December July 1969 to July 1970. His service treatment records (STRs) reveal that he was shot with an AK-47 by hostile fire in the posterior neck in January 1970. His DD Form 214 documents that he received medals and awards such as the CIB, Purple Heart, Vietnam Commendation Medal with 60 Device, and the National Service Defense Medal, among others. The CIB and Purple Heart are evidence he engaged in combat. Moreover, his DD Form 214 revealed a military occupational specialty (MOS) of light weapons infantry. Therefore, acoustic trauma as purported by the Veteran is conceded. The Board acknowledges that there is evidence against the Veteran's reports of a continuity of symptomatology beginning in service. There were no complaints, treatment, or diagnoses of hearing loss documented in the STRs. On a January 1971 separation examination, the Veteran's ears were reported as normal on clinical evaluation. Whispered voice hearing test was 15/15 and audiometric findings revealed puretone thresholds as 0 decibels at 500, 1000, 2000, and 4000 Hertz, bilaterally. On January 1971 separation Report of Medical History, the Veteran checked "no" when asked if he had hearing loss. On the other hand, hearing loss is capable of lay observation, and his claims of symptoms of hearing loss beginning from when he was shot in the back of the head constitutes competent evidence in support of the claim. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report in-service noise exposure, hearing loss, and a continuity of symptomatology. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Moreover, the Veteran's credibility is not in question. Additionally, in an April 2011 statement, the Veteran's spouse indicated that she met the Veteran in 1971 and she remembered him telling her that he had ringing in his ears due to a head wound. She reported that after they were married, she noticed that he could not hear her talking if there was other noise in the room. Resolving reasonable doubt in the Veteran's favor, the Board finds that his reports are credible and in-service acoustic trauma, hearing loss, and a continuity of symptomatology are conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). Thus, there is evidence of current bilateral hearing loss, in-service noise exposure and hearing loss, and a continuity of symptomatology. The only medical opinion as to the etiology of the Veteran hearing loss is that of an audiologist who conducted the September 2009 VA examination. She opined that it was less than likely that the Veteran's hearing loss was the result of military service. The examiner reasoned that the enlistment and separation audiogram showed normal hearing, bilaterally. The September 2009 opinion is of little probative weight because, although audiological testing revealed normal hearing at separation, the opinion did not acknowledge or otherwise consider the Veteran's reports of continued hearing difficulties in the years since service. 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). As there is evidence of bilateral hearing difficulties since service due to in-service noise exposure, evidence of current bilateral hearing loss, competent and credible evidence of a continuity of symptomatology since service, the Board finds that the criteria for service connection for the currently diagnosed bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303, 3.385. ORDER Service connection for bilateral hearing loss is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs