Citation Nr: 1320070	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  13-05 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida



THE ISSUE

Entitlement to service connection for a claimed bilateral hearing loss.



REPRESENTATION

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



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel




INTRODUCTION

The Veteran served on active duty from May 1944 to April 1946.
      
This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the RO that denied service connection for both bilateral hearing loss and tinnitus.  

The Veteran did not perfect an appeal as to the issue of service connection for tinnitus.  As such, the Board finds that entitlement to service connection for bilateral hearing loss is the only issue remaining before the Board for consideration.  See July 2010 Notice of Disagreement; 38 C.F.R. § 20.200 (2012).

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim.  A review of the documents in the electronic file reveals non-duplicative evidence of the Veteran's ongoing VA treatment.  However, those records were obtained and considered by the RO prior to the issuance of Statement of the Case in January 2013.  Therefore, the Board finds that there is no prejudice in proceeding with consideration of the evidence in the Virtual VA file.

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

The currently demonstrated bilateral hearing loss disability is shown as likely as not to be due to the Veteran's exposure to hazardous noise levels during service in World War II.



CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability is due to disease or injury incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 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

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time.


Legal Principles and Analysis

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 (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 discharge 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).

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.  If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include sensorineural hearing loss (organic disease of the nervous system), 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).

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 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, 1110; 38 C.F.R. §§ 3.307, 3.309.

The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his current bilateral hearing loss is attributable to excessive and harmful noise exposure during service, to include while performing duties as an aerial gunner in the Army Air Corps.  He asserts that his hearing loss has gradually become worse since that time.  See, e.g., May 2009 written statement; July 2010 Notice of Disagreement.

A review of the Veteran's service personnel records shows that his military occupational specialty was aerial gunner.  As such, in-service noise exposure is acknowledged.  38 U.S.C.A. § 1154(a).

A review of the post-service evidence shows that the Veteran was treated for ongoing complaints of hearing loss, to include wearing hearing aids.  See, e.g., September 1998 and March 2000 private treatment records; November 2009 VA treatment record.

The Veteran was afforded a VA audiological examination in October 2009 and reported being exposed to loud noise from airplanes during service without hearing protection.  He denied having either occupational or recreational noise exposure thereafter.

On audiological examination, the pure tone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
70
75
85
95
LEFT
50
60
75
85
-

Speech recognition was 52 percent in the right ear and 44 percent in the left ear.  

The examiner diagnosed moderately severe to profound sensorineural hearing loss in the right ear and mild to profound sensorineural hearing loss in the left ear, stating that she could not provide an opinion on the etiology of the Veteran's bilateral hearing loss without resorting to speculation.  

In so finding, the examiner indicated that it would be impossible to determine the onset of the Veteran's hearing loss due to the lack of frequency-specific hearing measurements at separation.  The examiner also noted that the only other hearing tests of record were from 2000 and 2005, many years after service.

The Veteran was afforded another VA audiological examination in December 2012, and reported that he was exposed to loud noise during service, to include aircraft and gunfire, without the use of hearing protection.  He again denied having occupational and recreational noise exposure thereafter.

On audiological examination, the pure tone thresholds in decibels were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
70
70
75
80
90
LEFT
50
55
70
80
90

Speech recognition was 70 percent in the right ear and 60 percent in the left ear.  

The examiner diagnosed sensorineural hearing loss in both ears in the frequency range of 500-4000 Hertz and stated that she could not provide an opinion on the etiology of the Veteran's bilateral hearing loss without resorting to speculation.  In so finding, the examiner indicated that it would be impossible to determine the onset of the Veteran's hearing loss due to the lack of frequency-specific hearing measurements at separation.  The examiner also noted that the only other hearing tests of record were from 2000 and 2005, many years after service.

Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral hearing loss disability as likely as not is the result of the exposure to excessive or harmful noise levels beginning in connection with the Veteran's duties during service.

The Veteran does have a current hearing loss disability, as defined under 38 C.F.R. § 3.385.  Furthermore, the Board acknowledges the Veteran's claimed noise exposure as part of his in-service responsibilities as an aerial gunner.

The Veteran is competent to report as to the symptoms he experiences, such as hearing difficulty and its history.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

To the extent that he now asserts having hearing problems that began with his extensive noise exposure in service, the Board finds his lay statements to be credible and sufficient to establish a continuity of symptomatology linking the onset of the claimed disorder to service.

While the opinion of the VA examiner weighs against the claim, the Board finds it to be of diminished probative value to the extent that the examiners did not fully assess the Veteran's assertions about his noise exposure during service in light of that experienced thereafter.  

In resolving all reasonable doubt in the Veteran's favor, service connection for the current bilateral hearing loss is warranted.  Gilbert, 1 Vet. App. at 53.


ORDER

Service connection for bilateral hearing loss disability is granted.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals

Department of Veterans Affairs