Citation Nr: 1315893	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  12-25 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.  


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran had active service from October 1951 to September 1959. 

This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2013; a transcript of the hearing is associated with the claims file.

In a February 2013 decision, the Board determined that new and material evidence had been received and reopened the previously denied claim for entitlement to service connection for bilateral hearing loss disability, and remanded the reopened claim for additional development.  

The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  


FINDING OF FACT

The Veteran's current bilateral hearing loss disability is related to his active service. 



CONCLUSION OF LAW

Bilateral hearing loss disability was incurred in active service.  38 U.S.C.A. 
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012).

Legal Criteria

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  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).

Generally, in order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

For the purposes of applying the laws administered by VA, hearing impairment will be considered to be a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 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 CFR § 3.385.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background 

The Veteran contends that his current hearing loss disability is related to noise trauma in service.  Specifically, during a January 2013 hearing before the Board, he testified that he was subjected to excessive noise coincident to his duties as a mechanic working on planes while in the United States Air Force.  

At the outset, the Board notes that the Veteran's service treatment records are not available, as they were destroyed in the 1973 fire at the National Personnel Records Center.  

The Veteran's DD Form 214 shows that he had active duty service from October 1951 to September 1959, with no combat service.  His occupational specialty included assignment in the periodic maintenance squadron with the 3556th. 

Post-service private treatment records dated in 1998 demonstrate the Veteran reported decreased hearing during the course of treatment for multiple health problems.  

VA outpatient treatment records dated in May 1999 through June 1999 show the Veteran was fitted for hearing aids.  

The Veteran was afforded a VA audiological examination in March 2011.  He reported that during his eight years in service, he was primarily an aircraft instrument mechanic, and was exposed to jet engine noise.  He reported that he was provided with various types of hearing protection but felt that such protection did not eliminate all of the noise.  Regarding post-service noise exposure, he reported occasional recreational noise exposure due to hunting; however, he denied occupational noise exposure, as he attended college and thereafter worked as a minister.

The audiogram results in March 2011 were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
70
70
      65
LEFT
       10
        25     
       70
        70
     65

Speech recognition was 74 percent in the right ear and 78 percent in the left.  The March 2011 VA examiner diagnosed bilateral sensorineural hearing loss.  The examiner indicated that the presence or absence of hearing loss during service was unknown because the Veteran's service treatment records were unavailable.  The examiner opined that the Veteran's current hearing loss disability was not related to his service.  In providing the opinion, the examiner noted that the Veteran had several post-service health concerns that were known to be associated with hearing loss, such as diabetes and chronic kidney disease.  He further noted, in significant part, that the Veteran was treated for ear-related concerns, however, hearing loss was not documented in his treatment records until the late 1990's.  

In an October 2011 statement, the Veteran's spouse stated that she and the Veteran started going together in 1953 before he got out of the service, and at that time, the Veteran complained about his ears ringing and his difficulty hearing.  She further stated that after she and the Veteran were married in 1954, he complained about his ears ringing and indicated that he could not hear well after working on jet air craft.  She indicated that after the Veteran's service, she and the Veteran attended college, but the Veteran had to sit in the front to hear the professors.  She concluded that the Veteran has continued to suffer from hearing loss since that time.

The Veteran was afforded a VA audiological examination in March 2013.  The Veteran reported that his current hearing loss began during service.  He reported that during service, he was taken off of his assignment around jets due to being around noise.    

The audiogram results in March 2013 were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
70
85
      80
LEFT
       25
        40 
       75
        80
      80

Speech recognition testing was not performed.  The March 2013 VA examiner indicated she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation.  In so concluding, the examiner noted that there were no service treatment records to review.  She noted that the Veteran was first treated by VA in 1998 and reported hearing problems at such time.  She further stated that subsequent records show the Veteran was referred to VA audiology, during which time, he reported that his hearing loss began in the 1988-1990 timeframe.  She noted that today, the Veteran reported that his hearing loss began in service.  She stated that she was instructed to accept the Veteran's exposure to noise during service as fact and to consider the Veteran to be a reliable historian; however, she posed the question of what time frame was she to believe - when VA first tested the Veteran in 1999 and he stated that his hearing loss began in 1988-1990, or today, when he stated that it began during service.  The examiner noted the Veteran's report that while in service, he was taken off of his assignment around jets due to being around noise, but she also noted that there was no specific incident that the Veteran reported in which he felt his hearing loss began.  The examiner opined that she could not etiologically relate the Veteran's current hearing loss to his service due to the fact that there were no service treatment records in the claims file, and due to the fact that the Veteran could not relate a specific event or injury in service during which his hearing loss began.  The examiner also opined that it is as likely as not that the Veteran's current hearing loss began during service and that it is at least as likely as not that the hearing loss is not due to service.

Analysis

The Board finds that the evidence of record supports a finding of service connection for bilateral hearing loss disability.  

The Veteran is competent to report decreased hearing acuity since service.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995).  

It is acknowledged that the Veteran was exposed to acoustic trauma during service, as he served in the periodic maintenance squadron with the 3556th, where he was exposed to noise from jet engines.  The Veteran credibly reported hearing loss since his period of service.  Moreover, the testimony of the Veteran's spouse corroborates the Veteran's statements of the presence of pertinent symptoms during service, as she asserted that she and the Veteran started going together in 1953 before he got out of the service, and at that time, the Veteran complained about his ears ringing and his difficulty hearing.  The Board also finds that the results of the March 2011 and March 2013 audiological examinations are sufficient to establish current bilateral hearing loss disability during the pendency of the claim.    

With respect to whether the Veteran's current hearing loss is related to his service, the March 2011 VA examiner provided a conflicting opinion because of the conflicting histories she was dealing with.  The Board has resolved reasonable doubt in the Veteran's favor and concluded that the history that he and his wife reported at the hearing before the Board is accurate.  Therefore, the opinion linking the hearing loss to service is based on the history the Board has determined to be accurate.  Accordingly, service connection is warranted for the Veteran's bilateral hearing loss disability.


ORDER

Entitlement to service connection for bilateral hearing loss disability is granted.  



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs