Citation Nr: 1309545	
Decision Date: 03/21/13    Archive Date: 04/01/13

DOCKET NO.  10-00 999	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to January 1968, including Vietnam service.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

A Board video hearing was held on January 17, 2013 before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is associated with the claims file via the Virtual VA paperless claims processing system.


FINDING OF FACT

Bilateral hearing loss was incurred in active service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim for entitlement to service connection for bilateral hearing loss, because it is being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown: (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). 

Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran asserts that current bilateral hearing loss is due to acoustic noise exposure during service in Vietnam.  In this case, in-service noise exposure is conceded because it is consistent with the circumstances of the Veteran's Vietnam service.  See 38 U.S.C.A. § 1154(b) (West 2002) (providing that VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge).

Service treatment records reveal that the Veteran did not have any complaints of or diagnoses of hearing loss problems during the course of service; however, his separation examination demonstrates a marked worsening in hearing acuity and hearing loss pursuant to VA standards exists at the time of separation.

Service department audiometric readings prior to October 31, 1967 are assumed to be in American Standards Association (ASA) units, which must be converted to International Standard Organization (ISO) units in order to evaluate for hearing loss under 38 C.F.R. § 3.385.  Thus, the audiogram conducted on December 1965 is presented here in ISO units, and shows that the Veteran had normal hearing upon entrance into service.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
20
25
20
LEFT
30
15
25
25
25

A clinical evaluation also found the Veteran's ears and drums to be normal at the time of his entrance examination, and he denied having a medical history of ear trouble or hearing loss.  In addition, the Veteran had a hearing loss profile of "H1."  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service).

However, upon separation examination in January 1968, once converting into ISO units, pure tone thresholds, in decibels, were as follows:




HERTZ


500
1000
2000
4000
RIGHT
35
25
35
25
LEFT
30
30
30
25

The Veteran indicated on his separation report of medical history that he had ear problems.  This examining physician diagnosed bilateral partial deafness.  A hearing loss profile of "H2" was assigned.  See Odiorne, 3 Vet. App. at 457.  

The Board notes that the January 1968 separation audiogram did not appear to have converted from ASA to ISO units despite the presumption that such conversions have been applied post-October 1967.  However, based on the diagnosis of partial deafness based on an interpretation of the audiogram, it follows that the separation audiogram had not been converted into ISO units.  Once converted into ISO units, the audiogram results demonstrate hearing loss pursuant to VA standards. 

Based on the foregoing, the Board finds that the evidence of record supports a finding of service connection for bilateral hearing loss.  At the time of separation in January 1968, the Veteran was shown to have left ear hearing loss pursuant to VA standards because the separation examination report demonstrates frequencies of 26 dB or greater for at least three measured categories (500 Hz, 1000 Hz, and 2000 Hz).  Thus, left ear hearing loss for VA purposes was diagnosed within the one year presumptive period and is service-connected.  See 38 C.F.R. §§  3.307, 3.309.  Additionally, there is a notable in-service shift in the Veteran's bilateral hearing thresholds from the time of entrance to separation from service. 

The Board notes that the diagnosis of bilateral partial deafness was present at service discharge and there is a current bilateral hearing loss.  This evidence, in combination with the Veteran's competent and credible testimony of hearing loss during, and since, active service provides an alternate basis for service connection.  38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  Thus, the evidence supports a finding that the Veteran has suffered from chronic bilateral hearing loss since service.  Although the March 2008 VA examiner determined that the Veteran had normal hearing acuity at the time of separation from service, the Board assigns no probative value to the VA examiner's negative nexus opinion because it is based upon an erroneous reading of the January 1968 separation examination results and provided no other supporting rationale.  

Thus, the evidence of record clearly supports a finding that the Veteran's current hearing loss for VA purposes is due to active service.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Accordingly, service connection for bilateral hearing loss is warranted.


ORDER

Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs