Citation Nr: 1317170	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-17 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a right ear condition.


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel


INTRODUCTION

The Veteran had active military service from February 1979 to May 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In August 2009, the Veteran testified at a hearing before the RO.  In December 2011, he testified at a hearing before the Board.  

In May 2012, the Board reopened a previously denied claim of service connection for a right ear condition, and remanded the underlying claim of service connection for further development, including affording the Veteran a VA compensation examination and obtaining any records from the Social Security Administration (SSA).  This audiology examination took place in June 2012, and although requested, no records pertinent to the Veteran were found at SSA.  The case has since returned to the Board for further appellate consideration.


FINDING OF FACT

The Veteran's right ear hearing loss disability was caused by acoustic trauma during active military service.   


CONCLUSION OF LAW

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





REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

As will be discussed below, the Board herein grants service connection in this case.  As such, the Board finds that any error related to the VCAA on this claim is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  


II.  Service Connection Claim

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. § 3.303(d) (2012).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77   (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes.  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 distinguished from merely isolated findings or diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012). 

To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).  Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.  Id. at 498 (holding that, on the question of whether the Veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent).  Once evidence is determined to be competent, its credibility must be evaluated.  Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). 

Certain chronic disabilities, to include certain types of hearing loss to the extent they may constitute an organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 C.F.R. § 3.385. 

For service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385  be demonstrated during service, or even within the one-year presumptive period following discharge, although a hearing loss disability by these standards of § 3.385 must be currently present to have a ratable disability. If there is current ratable hearing loss disability, then service connection is possible if this current disability can be adequately linked to the Veteran's military service as opposed to other unrelated factors.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes.  Hensley, 5 Vet. App. at 159. 

In its determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072   (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

In this case, the record shows that the Veteran is currently diagnosed with sensorineural hearing loss in the right ear.  The June 2012 VA examination confirms that the Veteran has sufficient hearing loss in his right ear to satisfy the requirements of § 3.385.  Thus, there is evidence of a current disability.

The Veteran testified at his December 2011 Board hearing that he has experienced problems with his right ear ever since military service.  His service treatment records are negative for a reference to the right ear.  However, the record shows that on May 21, 1979, just five days after his separation from active service, he was seen at the San Juan VA Medical Center (VAMC) at which time it was noted that he had a history of a right ear perforation with symptoms of an ear ache and bloody discharge, dating back to May 14, 1979, when he was stationed at Fort McClellan, Alabama.  Given this right ear treatment just days after service discharge, it is reasonable to find that an in-service injury, disease, or event is established by the evidence. 

The Board also finds that the Veteran has credibly reported being exposed to acoustic trauma in service.  His personnel records show that he received a Marksman (Rifle M-16) badge during basic training.    

Sensorineural hearing loss in the right ear was not shown within the first year of service discharge.  The Board recognizes that a July 1979 VA audiogram showed mild conductive hearing loss in the right ear (which the June 2012 VA examiner associated with the prior tympanic membrane perforation), but sensorineural hearing loss was not diagnosed at that time.  The Board notes further that the Veteran's subsequent audiograms taken in November and December 1979 did not indicate sensorineural hearing loss; rather his hearing was normal.  Hence, service connection is not warranted on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

However, in addition to the evidence of a current disability and in-service injury, there is evidence of a nexus between the current right ear hearing loss and service.  After reviewing the claims file and examining the Veteran, the June 2012 VA examiner determined that the Veteran's right ear hearing loss was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  In arriving at such opinion, the examiner acknowledged the Veteran's report of having been exposed to acoustic trauma during firing range training in service, as well as the tympanic membrane perforation which the Board has determined was actually incurred in service.  The examiner stated that although the Veteran's right ear perforation had healed, he now presents with sensorineural hearing loss in that ear.  Although not expressly stated, the examiner appears to relate the Veteran's sensorineural hearing loss in the right ear to the in-service tympanic perforation, which in turn is related to the in-service acoustic trauma.  This opinion is factually accurate and fully articulated, and is based on sound reasoning.  Therefore, the Board finds this examiner's opinion to be highly probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Thus, in light of the medical evidence of a current disability, the right ear tympanic membrane perforation determined to have been incurred in service, the Veteran's service decoration, and the favorable June 2012 VA etiology opinion, the Board finds, with resolution of any doubt in the Veteran's favor, that service connection for right ear hearing loss is warranted.  


ORDER

Entitlement to service connection for right ear hearing loss is granted.  



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs