Citation Nr: 1306353	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  10-39 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for a left ear hearing loss disability.

2.  Entitlement to service connection for a right ear hearing loss disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from August 2002 to February 2005.  

This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 

The Veteran was afforded a VA hearing before the Board in July 2012.  A transcript of the testimony offered at this hearing has been associated with the record.


FINDINGS OF FACT

1.  There is an approximate balance of positive and negative evidence as to whether the Veteran has a hearing loss disability of the left ear that was incurred in service.

2.  The preponderance of the evidence is against finding that the Veteran has a hearing loss disability of the right ear as defined by VA regulations.


CONCLUSIONS OF LAW

1.  Resolving doubt in favor of the Veteran, the criteria for service connection for a left ear hearing loss disability have been met.  38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for service connection for a right ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

VCAA letters dated in March 2009 and August 2009 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Furthermore, these letters described how appropriate disability ratings and effective dates were assigned.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA medical records are in the file.  The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claims.  VA has fulfilled its duty to assist.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  The Veteran was provided a VA examination in September 2009 which addressed his claim for service connection for a bilateral hearing loss disability.  The examiner conducted the appropriate diagnostic tests, and considered the Veteran's reported history.  The Board finds this examination report and opinion to be thorough and complete.  Therefore, the Board finds this examination report and opinion sufficient upon which to base a decision with regard to this service connection claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).

Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  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, or 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 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran's service treatment records reflect that his military occupational specialty was 11B10 (infantryman).  He received the Combat Infantryman Badge.

On audiological examination in September 2003, pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
10
0
0
0
0
LEFT
15
5
0
0
10

On audiological examination in November 2004, pure tone thresholds, in decibels, were as follows:


HERTZ

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

A June 2007 service examination report reflects that the Veteran had normal ears.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
0
0
5
5
LEFT
5
5
5
5
5

On his June 2007 Report of Medical History (RMH), the Veteran noted that he did not experience hearing loss.

In March 2009, the Veteran recounted his experiences firing machine guns, anti tank missiles, and hand grenades while on active duty.  He related that while he was on deployment to Iraq, he was exposed to numerous deafening noises.  He remarked that he was exposed to IEDs and mortar fire.

On VA fee basis examination in September 2009, the Veteran reported that he was not receiving treatment for hearing loss.  He described having difficulty hearing with background noise.  The examiner noted that the Veteran served in the infantry, and after service, he worked as a police officer.  Pure tone thresholds, in decibels, were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
25
25
25
35
35
LEFT
25
25
25
45
50

Speech recognition testing resulted in results of 94 percent in the right ear and 96 percent in the left ear.  The examiner opined that the Veteran's hearing loss was less than likely due to noise exposure in the service because there was no significant change in hearing while the Veteran was still in the service.

In August 2009, T.S., the Veteran's spouse, stated that her husband's hearing was fine before he deployed to Iraq.  She related that the Veteran presently had difficulty hearing her.  

In November 2009 and September 2010, the Veteran reiterated his experiences of being an infantryman deployed in Iraq.  He described his exposure to gunfire, IEDs, and mortar rounds.

At the Veteran's July 2012 Board hearing, the Veteran described his exposure to an IED blast when he was deployed to Iraq.  He discussed his exposure to mortars, artillery, and rockets.

As an initial matter, concerning the Veteran's right ear, the Board notes that the pure tone thresholds as recorded by the September 2009 VA audiologist do not meet the numerical standards enumerated by 38 C.F.R. § 3.385 (2012).  As such, the Veteran does not have a hearing loss disability in the right ear for VA benefit purposes.  Without a diagnosis of a current hearing loss disability in the right ear that meets the standards of 38 C.F.R. § 3.385, service connection cannot be granted for hearing loss, right ear.  

In reaching this conclusion, the Board acknowledges that the Veteran is competent to report difficulty hearing in his right ear.  However, he is not competent to state that his right ear pure tone thresholds or speech recognition scores arise to levels sufficient to warrant a disability for VA purposes.  Accordingly, the Board has placed greater probative value on the contemporaneous medical evidence that does not support a finding of a right ear hearing loss disability for VA purposes.  

However, concerning the Veteran's left ear, the September 2009 audiological findings support the conclusion that the Veteran has a hearing loss disability in the left ear for VA compensation purposes, as he demonstrated an auditory threshold of 50 decibels at 4000 Hertz in the left ear.  38 C.F.R. § 3.385 (2012).

Therefore, the question to be decided in the present appeal is whether such hearing loss of the left ear is associated with the Veteran's active duty.  With respect to whether the Veteran experienced an in-service disease or injury, he asserts that he was exposed to acoustic trauma from the sounds of combat while performing duties of his military occupational specialty as an infantryman.  Significantly, the Veteran's DD Form 214 confirms that he was an infantryman, and he was awarded the Combat Infantryman Badge.  Based on this evidence, it is clear that the circumstances of the Veteran's service would have exposed him to acoustic trauma during service.  Thus, the Board does not dispute that he likely experienced acoustic trauma during service.

With respect to whether there is a nexus or relationship between the Veteran's current left ear hearing loss disability and military service, the Board acknowledges that the September 2009 VA examiner opined that the Veteran's hearing loss was less than likely due to noise in the service because there was no significant change in hearing while the Veteran was still in the service.

However, the Board also notes that the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report difficulties hearing in his left ear as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).  Moreover, the Veteran has consistently complained of difficulty hearing in his left ear since he left service.

The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).   However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  

As noted, the Veteran is competent to describe his in-service noise exposure and current difficulty hearing in his left ear, and the Board finds that his assertions regarding a continuity of symptomatology since service are credible.  After a review of the evidence of record as a whole, and in light of the foregoing, the Board is satisfied that the Veteran's current left ear hearing loss disability cannot be disassociated from his in-service exposure to acoustic trauma.  Thus, the medical and lay evidence for the claim and the evidence against the claim are at least in equipoise.  Accordingly, the benefit-of-the-doubt rule applies and service connection for hearing loss disability of the left ear is warranted.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for a left ear hearing loss disability is granted.

Entitlement to service connection for a right ear hearing loss disability is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs