Citation Nr: 1314494 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 12-27 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served from September 1956 to December 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2013, the Veteran testified before the undersigned via videoconference. A transcript of the hearing is associated with the claims file. A review of the Veteran's virtual VA file reveals that all evidence contained therein is duplicative of or irrelevant to the claim decided herein. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence of record demonstrates that bilateral hearing loss disability is related to active service. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim, 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012). As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend, that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, which includes sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 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. As organic diseases of the nervous system (including sensorineural hearing loss), is considered to be chronic diseases for VA compensation purposes, 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), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (2012). The March 2011 VA examination report shows that the Veteran's hearing loss meets these criteria. The Veteran contends that his bilateral hearing loss disability is due to noise exposure during active service. He stated in April 2012 that he was an anti-tank gunner and small arms instructor. He was not provided sound protection and conducted classes twice a week for three months. The Veteran testified in February 2013 that he was also stationed on board an aircraft carrier and was exposed to airplanes taking off and landing. He was exposed to noise up to four hours per day. At no point during service did the Veteran wear hearing protection. He had no significant noise exposure after service, as he worked as a household plumber. He noticed his hearing loss ever since service, and it had gradually worsened since that time. The Veteran's service entrance and separation examination reports show that he scored 15/15 on whispered voices tests and denied any medical history of problems with his ears. His DD 214 reveals that his specialty was anti-tank assault man. In March 2011, the Veteran underwent VA examination. He reported a gradual decrease in hearing since he left service. Following audiological evaluation, which revealed hearing loss that is disabling for VA purposes, the examiner indicated that it was not possible for her to state whether hearing loss was due to in-service acoustic trauma without resorting to speculation. She explained that her audiology handbook indicated that the whispered voice testing that was conducted at entry and separation was known to be insensitive to high frequency hearing loss, which is the type most commonly caused by noise exposure. Therefore, the whispered voice tests were not reliable evidence of normal hearing or hearing impairment. In a January 2012 written statement, the Veteran's physician indicated that he had high frequency sensorineural hearing loss bilaterally, with some asymmetry. The Veteran indicated that it had been asymmetric since he left service and was consistent with trauma to the right ear. The Veteran had indicated that he was accosted during a fighting exercise in service, and it was "likely that his hearing loss is not due to exposure to acoustic trauma as well as this blunt trauma" during service. The Board finds that the evidence of record supports a finding of service connection for bilateral hearing loss disability. As noted above, the Veteran demonstrates hearing loss that is disabling for VA purposes. See 38 C.F.R. § 3.385; Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Furthermore, there is an in-service event-acoustic trauma. 38 C.F.R. § 3.303(a). The Veteran provided competent and credible testimony regarding exposure to high frequency noise as an anti-tank assault man and as a shooting instructor. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996); 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). The Veteran's DD-214 supports his contention. Moreover, the Board finds the Veteran's testimony that he noticed hearing difficulty during service both competent and credible as his assertions have remained consistent. Caluza, 7 Vet. App. at 511; Layno, 6 Vet. App. at 469-70. This probative testimony, coupled with the VA examiner's explanation that the normal whispered voice test at separation was not able to detect the most common hearing loss following acoustic trauma, indicates the presence of acoustic trauma and the possibility of hearing loss upon service discharge. Moreover, the Board finds that the evidence of record demonstrates that hearing loss disability is related to active service. 38 C.F.R. § 3.303. The Veteran has provided competent and credible testimony that he has noticed hearing difficulty since his discharge. Additionally, several lay statements of record confirm that the Veteran had difficulty hearing upon his return from service. See Caluza, 7 Vet. App. at 511; Layno, 6 Vet. App. at 469-70. The Board finds that the March 2011 VA examiner's opinion has no probative weight either for or against the Veteran's claim, because the examiner could not provide an opinion without resorting to speculation, due to the whispered voice test that was afforded to the Veteran at the beginning and end of his service. The January 2012 opinion from the Veteran's private physician is somewhat unclear. He appears to support the Veteran's claim in the written statement but then indicates that it is likely that hearing loss is "not" due to exposure to acoustic trauma and blunt trauma during service. Taken as a whole and reading that statement in the light most favorable to the Veteran, the Board interprets that the Veteran's physician intended to opine that the hearing loss was due, at least in part, to exposure to acoustic trauma during service. The Board finds that this opinion carries some probative weight. Although the Veteran's private physician does not appear to have reviewed the claims file or service records, the opinion is based in part on the Veteran's report of acoustic trauma in service, which the Board has found credible. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (noting that a medical opinion may not be discounted solely for a lack of claims file review, because the central issue is whether the examiner was informed of the relevant facts in rendering a medical opinion). Accordingly, based upon the most probative opinion of record and the Veteran's credible report that his hearing loss began during and has been present since service, and considering the doctrine of reasonable doubt, the preponderance of the evidence supports service connection for bilateral hearing loss disability. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for bilateral hearing loss disability is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs