Citation Nr: 1314832	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  09-29 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for hearing loss.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Ferguson, Counsel


INTRODUCTION

The Veteran had active service from May 1970 to November 1971, which included a tour of duty in the Republic of Vietnam from October 1970 to November 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  The Board has reviewed the Veteran's physical claims file, as well as his electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. 

In January 2010, the Veteran presented testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge (VLJ) at the RO in Newark, New Jersey.  A transcript of the hearing is of record.


FINDING OF FACT

A current bilateral hearing impairment was caused by in-service noise exposure.    


CONCLUSION OF LAW

Giving the benefit of the doubt to the Veteran, hearing loss was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

The Veteran contends that his current bilateral hearing loss was caused by acoustic trauma sustained during his period of active service in the Army while serving in the Republic of Vietnam.  He asserts that he was repeatedly exposed to the loud noise of heavy artillery and gun fire and developed hearing problems during his Vietnam service as a result of such exposure.  He reportedly did not seek treatment for hearing problems during service despite experiencing the symptomatology at that time and continued to have hearing problems after service.    

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).

The Veteran's currently-diagnosed sensorineural hearing loss is considered an organic disease of the nervous system.  Thus, it is a "chronic disease" listed under 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) applies to the disability.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  

If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b) (2012).  Service connection may also 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) (2012). 

In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 

Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 

Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.   In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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).  VA regulations, however, do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Where a current disability due to hearing loss is present, service connection can be granted for a hearing loss disability where a veteran can establish a nexus between his or her current hearing loss and a disability or injury he or she suffered while in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).

In the present case, the evidence of record shows that the Veteran currently suffers from a bilateral hearing impairment as defined by VA regulation.  Specifically, when the Veteran underwent an audiological examination in connection with the claim in September 2008, he demonstrated pure tone thresholds, in decibels, as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
20
15
75
LEFT
10
5
10
20
60

Speech recognition scores with the Maryland CNC Test were 98 percent bilaterally.  There is no indication that the audiometric results reported in the September 2008 audiological examination report are unreliable or otherwise inadequate.  Thus, the above evidence establishes a diagnosis of a current bilateral hearing impairment as defined by 38 C.F.R. § 3.385.  As a current diagnosis of bilateral hearing impairment is established, the Board will next consider whether the record supports a finding of in-service incurrence.

The Board initially notes that the Veteran's service treatment records are absent of any complaints, findings, or treatment for hearing problems, which is consistent with his testimony at the Board hearing that he did not seek medical treatment for hearing problems in service.  The Board also notes that his hearing acuity is shown to have been within normal limits at the November 1971 separation examination.  

However, service personnel records show that the Veteran served as a cannoneer from October 1970 to April 1971 and was stationed in the Republic of Vietnam for over a year.  He has competently reported having been exposed to loud noise during his period of service, and the lay account of exposure to noise is shown to be consistent with the circumstances of his Vietnam service and is, therefore, deemed credible.  

The Board also notes that the Veteran's hearing acuity, while consistently within normal limits, is shown to have worsened at all relevant threshold levels for both ears from the time that he underwent audiometric testing at the March 1970 service examination to the time he underwent audiometric testing at the November 1971 separation examination.  

Additionally, the Board has considered the Veteran's contention that he has had hearing loss symptomatology since service.  He is competent to report the onset of his hearing difficulties.  Despite the absence of treatment for hearing loss until 2003, which is 31 years after service separation, there is no indication in the record that his account of having had hearing problems since service is not credible.  

There is further both unfavorable and favorable medical opinion evidence of record addressing the question of whether the Veteran's current bilateral hearing loss was caused by in-service noise exposure.  In support of the claim, he submitted a medical opinion from a private otolaryngologist dated in August 2009.  The private otolaryngologist considered the Veteran's history of in-service noise exposure and audiometric data as demonstrated on examination and noted that the Veteran's hearing loss was compatible with a large amount of the kind of generalized noise exposure a soldier in the Vietnam Conflict would have encountered.  

The otolaryngologist also wrote that the Veteran's audiogram showed pretty good overall hearing; however, the pattern of better hearing in the lower frequencies with sharp drop-offs in the higher frequencies was typical of former soldiers whom the otolaryngologist had treated.  The otolaryngologist opined that the Veteran's hearing loss represented a noise-induced hearing loss related to service.  

Weighing against the claim is the September 2008 VA medical opinion.  Based on her review of the claims file and interview and evaluation of the Veteran, the VA examining audiologist opined that his hearing loss was not due to in-service noise exposure.  In support of her conclusion, the audiologist noted that pure tone audiometric results revealed normal thresholds bilaterally at the time of the separation examination without complaint of hearing loss (or tinnitus) in the service treatment records or at the time of separation.  The examining audiologist further explained that there was no scientific basis for delayed noise-induced hearing loss and cited a 2005 Institute of Medicine Report.  

Both the private otolaryngologist and the VA examining audiologist have the requisite medical expertise in auditory matters to render a competent medical opinion regarding the cause of the Veteran's hearing loss.  Also, both the otolaryngologist and audiologist had adequate data on which to base the opinions and provided sufficient rationale in support of the opinions.  Neither medical opinion is shown to be inadequate.   

Thus, on the one hand, the Veteran demonstrated a normal hearing acuity during service, was first shown to suffer a hearing impairment as defined by VA regulation until more than three decades after service, and the VA examining audiologist opined that hearing loss was not due to in-service noise exposure based on review of the claims file and examination of the Veteran.  On the other hand, his hearing acuity is shown to have worsened during service, he was likely exposed to the noise of artillery and gun fire during service, he has competently reported that he has had hearing problems since service, and a private otolaryngologist has linked hearing loss to noise exposure during service.  

Furthermore, the Board notes that service connection for tinnitus has been established primarily based the Veteran's history of in-service noise exposure and a favorable medical opinion by the private otolaryngologist.  See August 2009 rating decision.  The award of service-connected disability for tinnitus shows recognition by VA that the Veteran developed a hearing-related condition due to in-service noise exposure.  

Upon consideration of the foregoing, the Board finds that the evidence both for and against the material issue of whether the Veteran has hearing loss related to noise exposure during active service is, at least, in relative equipoise.  Therefore, the Board resolves reasonable doubt in his favor in finding that service connection for hearing loss is warranted.

Finally, in light of the favorable disposition in this case, no discussion of the applicability and/or fulfillment of VCAA notice requirements is necessary.   


ORDER

Service connection for hearing loss is granted.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs