Citation Nr: 1305979 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 11-03 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for bilateral hearing loss. WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied entitlement to the benefit currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2012 in Boise, Idaho to present testimony on the issue on appeal. Subsequently, he submitted additional medical evidence, with a waiver of RO jurisdiction over that evidence. FINDING OF FACT The competent and credible evidence of record establishes that the Veteran's current bilateral hearing loss is related to his military noise exposure. CONCLUSION OF LAW Bilateral hearing loss was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the agency of original jurisdiction (AOJ) has a duty to notify and assist the Veteran pursuant to 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159 (2012). As will be discussed below, service connection for bilateral hearing loss is warranted; therefore, a full discussion of whether VA met these duties is not needed. It is important to note that in letters dated in February and March 2010, the AOJ provided notice with respect to all required elements, to include the initial disability rating and effective date elements of the claim. The Veteran seeks service connection for bilateral hearing loss, which he contends is due to his active duty service. Specifically, he contends that his duties as a clerk typist on the flight line, maintaining flight records, exposed him to significant helicopter noise. Additionally, he has testified that he also served as a door gunner when those assigned to that duty were on leave or otherwise occupied, which exposed him to heavy artillery firing. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the evidence supports a current diagnosis of hearing loss. See private audiogram, dated February 2010; see also VA examination report, dated May 2010. With respect to an in-service event or injury, the service personnel documents confirm that the Veteran served in Vietnam for one year as a clerk typist. The description of his duties, and consequent noise exposure, is consistent with service at that time. Therefore, the question remains whether there is a nexus between the Veteran's current diagnosis of hearing loss and his in-service noise exposure. The Veteran submitted a private audiogram, dated in February 2010, that contained the diagnosis of hearing loss, "indicative of noise exposure." As there was no discussion of the Veteran's history of noise exposure, both during and after service, he was scheduled for a VA examination. In May 2010, the Veteran underwent a VA audio examination. The diagnosis of sensorineural hearing loss was confirmed. The Veteran relayed his in-service noise exposure of helicopter noise, and door gunner duties. He also relayed his limited post-service noise exposure, indicating that he worked in office environments, and on occasions when driving his tractor at his property with horses, he wore hearing protection. The examiner indicated that the Veteran had excellent hearing at separation and therefore, it was "less likely" that his current hearing loss was related to service. In a November 2011 addendum, the examiner indicated that she had no change in her opinion. She did not provide additional reasoning, but instead relied on the lack of hearing loss at separation. The Court of Appeals for Veterans Claims has held that the applicable regulation (38 C.F.R. § 3.385) does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the Board accords little weight to the VA examiner's opinions that rely solely on the lack of hearing loss demonstrated at separation. The Veteran submitted additional medical opinions after his hearing before the undersigned. In May 2012, his family nurse practitioner indicated that the Veteran's hearing loss "can certainly be attributed" to noise exposure in service. He based his opinion on the Veteran's credible description of the type of exposure he experienced. In June 2012, the audiologist who initially diagnosed hearing loss for the Veteran submitted an opinion, stating it was "obviously very possible" that his hearing loss was caused by his service. He too pointed to the type of exposure he had in service. Lastly, a doctor of audiology reviewed the Veteran's military noise exposure and post-service exposure, and found that it was "at least as likely as not" that the Veteran's hearing loss "was caused by occupational noise exposure on active military duty." The Board finds that the three private opinions, when viewed in light of each other and the remaining evidence of record, combine to establish that the Veteran's hearing loss was caused by his military service. They are based on the Veteran's credible noise exposure history, both during and after service. When viewed together, they provide a reasoned basis for the opinion. They are not contradicted by the probative evidence of record. Therefore, service connection is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs