Citation Nr: 1319025	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-32 204	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for left ear hearing loss disability.


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel














INTRODUCTION

The Veteran, who is the appellant, served on active duty with the Navy from May 1989 to March 1993 and from February 1997 to February 2006.  The Veteran also served in the Georgia Army National Guard from 1993 to 1996 with periods of active duty for training and inactive duty training.

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decision in February 2008 of a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012, the Board remanded the issue of entitlement to service connection for left ear hearing loss for additional development.


FINDING OF FACT

Left ear hearing loss disability had its onset in service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss disability have been met.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.



As the Board is granting the claim of service connection for a left ear hearing loss disability, VCAA compliance need not be addressed further.


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131. 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

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). 

Service connection may be granted on a presumptive basis if sensorineural hearing loss becomes manifest to a compensable degree within the first year after discharge from service even if not shown during service.  38 C.F.R. §§ 3.307, 3.309(a).

Under 38 C.F.R. § 3.303(d), 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.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  




For the purpose of applying the laws administered by VA, impaired hearing will be considered 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 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.

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a).  The Veteran does not assert that he was in combat and the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Evidentiary Standards 

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 






If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran. 38 U.S.C.A. § 5107(b).

Evidence 

The service treatment records from the Veteran's first period of active duty are not available.  Where the service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

In May 1993, two months after his separation from his first period of active duty, on enlistment in Georgia Army National Guard, a left ear hearing loss disability under 38 C.F.R. § 3.385 was shown.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
x
0
0
40
65
LEFT
x
0
0
0
0








On the Navy enlistment examination in January 1996 audiology testing showed:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
5
0
0
40
70

National Guard treatment records dated in April 1996 show that on a EENT consultation the Veteran reported a history of noise exposure in the past on active duty and in the National Guard.  The examiner noted that he had a severe sensorineural hearing loss in the left ear at 3000 to 8000 hertz.

During his second period of active duty in May 1997, an audiology clinic consultation noted the Veteran had a prior history of active duty in the Navy as well as active duty/National Guard service.  The Veteran reported an incident in which an artillery simulator was activated at close range.  The examiner found unilateral sensorineural hearing loss attributed to significant noise history.

On VA examination in April 2007, the Veteran reported onset of left ear hearing loss in 1993 after an artillery simulator exploded five feet from his ear.  He reported being exposed to helicopters, guns, small arms fire, missiles, and artillery during both periods of active duty.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
0
10
LEFT
15
10
10
85
80

The examiner noted left ear hearing within normal limits at 500 to 2000 hertz sloping to severe sensorineural hearing loss at 3000 to 4000 hertz.




On his substantive appeal received in August 2009 the Veteran reported a history of an artillery simulator exploding close to his head.

On VA examination in May 2011 pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
0
5
20
LEFT
5
5
10
70
95

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 76 percent in the left ear.

Analysis

The Veteran has consistently reported the incident in which an artillery simulator exploded near him.  While it is unclear from the record whether this incident occurred during his first period of active duty with the Navy or during a period of training with the Georgia Army National Guard, the Board finds that this distinction is not important to the outcome of the Veteran's claim.  

The record shows that the Veteran had left ear hearing loss disability by VA standards approximately two months after his separation from his first period of active duty for which the service treatment records are not available.  As the Veteran's statements about exposure to acoustic trauma in service are credible and because the current evidence shows that he continues to have left ear hearing loss disability by VA standards, the Board concludes that the favorable evidence outweighs any evidence against the claim, and service connection for left ear hearing loss disability under 38 C.F.R. § 3.303(d) is established. 

      (The Order follows on the next page.).




ORDER

Service connection for left ear hearing loss disability is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs