Citation Nr: 1310682 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 07-05 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran performed active military service from August 1968 to May 1970. He received the Combat Action Ribbon. This appeal arises to the Board of Veterans' Appeals (Board) from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona that in pertinent part denied service connection for a bilateral hearing loss disability. This case was previously before the Board in October 2010 and April 2012. As discussed in more detail below, the Board finds that there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Affording the Veteran the benefit of the doubt, the currently diagnosed right ear hearing loss is related to military service. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. Compliance with Prior Board Remand The Board remanded this matter in October 2010 for the purpose of scheduling the Veteran for a new VA examination to determine whether his right ear hearing loss is a disability for VA purposes and whether the hearing loss is related to the Veteran's military service. The Veteran was provided with a VA examination in December 2010. However, the Board again remanded this matter in April 2012. The Board found the December 2010 VA examination inadequate and requested a new VA audiological examination. See 38 C.F.R. § 3.159(c)(4). In May 2012, the Veteran underwent an adequate VA audiological examination. Thus, it appears there was substantial compliance with the remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Service Connection In general, in order to prevail on the issue of service connection the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced difficulty hearing. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his right ear hearing loss is attributable to noise exposure in the military where he engaged in combat and was routinely exposed to noise from firearms and explosions without ear protection. The Board notes that the Veteran was awarded the Combat Action Ribbon. The Veteran also was exposed to noise trauma from jets while stationed at a naval base where he worked next to the runway. Post-service, he worked for a telephone company. The Veteran consistently denies occupational and recreational noise exposure. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's July 1968 annual examination noted his ears were normal and that he scored 15/15 on the whispered and spoken voice test. The Veteran also self-reported a negative history for ear trouble or hearing loss. The April 1970 separation examination shows his right ear did not meet VA's standard for a hearing loss disability. A May 2006 VA audiogram shows that the Veteran's right ear hearing loss meets VA's disability requirements. The examiner diagnosed the Veteran with high-frequency sensorineural hearing loss in the right ear. The Veteran reported a history of in-service noise exposure to artillery but denied post-service noise exposure. The examiner opined that, based on the evidence of normal hearing at the time of discharge from service, it was not likely that the hearing loss had its origins in service. However, the May 2006 VA opinion is inadequate as VA regulations do not preclude service connection for a current hearing disability where hearing is within normal limits on audiometric testing at separation from service. See 38 C.F.R. § 3.385; Hensley, 5 Vet. App. at 160. In August 2010, the Veteran's private doctor found the Veteran has some mild to moderate hearing loss and a history of noise exposure in the past. See Letter from Dr. D.L.S., August 2010. Dr. D.L.S. opined that the Veteran's bilateral high frequency sensorineural hearing loss was most likely caused by noise exposure. In December 2010, the Veteran underwent another VA examination. The Veteran reported in-service exposure to gunfire and howitzers without hearing protection. The Veteran stated that prior to service he was in school and post-service he worked for a telephone company. He denied occupational and recreational noise exposure. The examiner found the Veteran did not have right ear hearing loss as defined by the VA. In May 2012, the Veteran underwent a third VA audiological examination. The audiogram shows the Veteran has right ear hearing loss as defined by the VA. The examiner diagnosed the Veteran with sensorineural hearing loss in the right ear. The examiner found that during service the Veteran was exposed to rifles, mortars, jets and helicopters without the use of ear protection. Further, the examiner found the Veteran did not have exposure to occupational noise either before or after service or noise exposure due to hobbies. However, the examiner opined that given the Veteran's hearing was within normal limits at the time of separation and based on the 2005 Institute of Medicine Report that concluded noise induced hearing loss occurs immediately, it is less likely as not that the Veteran's hearing loss is related to military noise exposure. The Veteran has consistently claimed that he experienced hearing loss in his right ear during service as a result of exposure to acoustic trauma in service. See Veteran's Application for Compensation and/or Pension, December 2005; Veteran's Statement and Pictures, March 2012. His statements concerning such noise exposure are credible, as they are consistent with his service record and acoustic trauma in-service has been conceded. The Veteran's lay statements that he experienced hearing loss since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his hearing loss since 1968. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. Additionally, the Veteran's wife has submitted a corroborating lay statement that since she first met the Veteran in early 1971, he has suffered from hearing difficulties. Id. The Veteran's wife states that the Veteran's hearing has worsened over the years and interferes with their ability to communicate. The Board concludes that the lay evidence provides a sound basis to attribute the current hearing loss to noise exposure in service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, which was based, in part, on the fact that the Veteran's hearing was normal upon discharge. The VA examiner's opinion did not consider that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 160. Additionally, the examiner failed to consider the Veteran's credible statements that he experienced hearing loss in-service and has experienced hearing difficulties since service. See Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. Further, the Veteran consistently and credibly reports that he was not exposed to any occupational or recreational acoustic trauma. Given this credible evidence, the examiner did not identify any intercurrent causes to which the Veteran's hearing loss may be "more properly attributable." Hensley, 5 Vet. App. at 159. Therefore, the VA examination has limited probative value. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current right ear hearing loss disability; that he was exposed to acoustic trauma in service with no hearing protection; that he has experienced hearing difficulties since service; that he has not been exposed to occupational or recreational noise exposure; and that, his private doctor opined that his hearing loss was most likely related to noise exposure. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for right ear hearing loss is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs