Citation Nr: 1320588	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  11-07 003	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from August 1944 to July 1946.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  As additional pertinent evidence or argument was received (38 C.F.R. § 3.156(b); Muehl v. West, 13 Vet. App. 159, 161-2 (1999)) in May 2009 a "confirmed" rating decision was issued.  A notice of disagreement was received in April 2010, and a statement of the case was issued in February 2011.  The Veteran's substantive appeal was received in March 2011.

The Veteran has indicated that he no longer desires either a RO or Board hearing on this matter.

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 evidence of record indicates that the Veteran's right ear hearing loss is likely etiologically related to active duty service.


CONCLUSION OF LAW

Service connection for right ear hearing loss is warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable decision to grant the Veteran's claim of entitlement to service connection for right ear hearing loss, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot.

Laws and regulations

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110; 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).  

To establish direct service connection rather than presumptive service connection, there generally must be (1) medical evidence of a current chronic disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or permanent aggravation of an injury or disease, and (3) medical evidence of a nexus between the current chronic disability and the in-service injury or disease.  Hickson v. West, 12 Vet. App. 247 (1999).

Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  This rule does not mean that any manifestations in service will permit service connection.  To show 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 a diagnosis including the word "chronic."  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  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).  However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In regard to claims specific to service connection for hearing loss, the Veterans Benefits Administration Adjudication Manual states that "Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a.  As such, service connection for sensorineural hearing loss (as an organic diseases of the nervous system) may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309.  Moreover, the concept of continuity of symptomatology as clarified by Walker, Supra., is applicable in this case.  As noted by the July 2008 VA examiner, the Veteran's right ear hearing loss is sensorineural in nature.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

Background

The Veteran's July 1946 service separation examination did not indicate any diagnosis, complaints, or treatment for hearing loss; whisper test scores were 15/15 bilaterally.

In an April 2008 statement the Veteran indicated that he served in the infantry and was a truck driver during service; he noted that the truck had a 50 caliber machine gun mounted on the cab.

At a July 2008 VA Social and Industrial Survey Examination the Veteran indicated that during service on a trip back from a combat zone a shell had exploded very close on the right side of his truck.  He indicated that his ear plugged up immediately and he hadn't been able to hear much out of it since that time.

At a July 2008 VA examination (Spokane Audiology Clinic) the Veteran stated that he had problems understanding conversations due to hearing difficulties.  The Veteran indicated that he worked as a heavy equipment operator during service and would fire his weapon with the right hand.  He stated that he was not issued any hearing protection.  His non-military occupational experience included sales for 28 years, 11 years as a grounds keeper, and being a truck driver for 5-6 years.  The Veteran essentially denied recreational noise exposure.  Diagnoses included bilateral sensorineural hearing loss, with the examiner describing the Veteran's right ear disability as profound sloping sensorineural hearing loss.

In a September 2008 addendum, the July 2008 VA examiner stated, in pertinent part, as follows:

I cannot provide an opinion on [the Veteran's] right ear hearing loss without resorting to mere speculation because a profound hearing loss of that nature is usually related to some form of vascular event in the ear.  I found no evidence to support a hearing loss of that magnitude.  However, the hearing loss in the left ear is definitely consistent with combat noise exposure during his participation in the battle of the bulge in Europe.

In September 2008 the RO granted the Veteran service connection for left ear hearing loss and for tinnitus.

A September 2009 VA audiogram noted right ear sensorineural hearing loss, including no measurable hearing from 2-8000 Hertz.

VA audiology records dated from September 2009 to March 2010 show that the Veteran received evaluation and fitting for hearing aids.  

A March 2010 private hearing evaluation report showed right ear hearing loss but contained no information concerning the etiology of such hearing loss. 

In a statement received in April 2010 the Veteran essentially indicated that he believed his combat experience had placed him in direct contact with loud noise that resulted in his right hearing loss.

Analysis

The Board finds that service connection for right ear hearing loss is warranted.  

With respect to the first Hickson requirement, diagnoses of right ear sensorineural hearing loss have been made, and such is not in dispute.  A current right ear hearing loss disability accordingly has been established.

With respect to the second Hickson requirement, while the July 1946 service separation examination is devoid of any reference to right ear hearing loss, the Veteran is competent to recount that he was exposed to loud noise from equipment and weaponry during service, as he did personally experience these events.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Barr, 21 Vet. App. at 303.  The Board finds that he also is credible in this regard, and the RO has relied, in part, on such information in granting the Veteran service connection for left ear hearing loss and tinnitus in September 2008.  His available personnel records confirm that he was a truck driver during service and that he had participated in campaigns in the Rhineland and Central Europe.  38 U.S.C.A. § 1154(a).  Military noise exposure accordingly is conceded.  Such exposure constitutes an in-service event sufficient to satisfy the second Hickson requirement.

With respect to the third Hickson requirement, the only written etiology opinion of record is the opinion of the examiner who conducted the July 2008 VA audiological examination and September 2008 addendum.  That examiner essentially stated that determining whether or not the Veteran's right ear hearing loss disability was related in some manner to his service would require a resort to mere speculation.  While the examiner indicated the type of hearing loss in the right ear is usually related to some vascular event, the examiner did not provide any further details in this regard; no evidence was described detailing the pathology evidencing a "vascular" event unrelated to service. The Board therefore finds that this opinion did not adequately explain why rendering an opinion concerning the Veteran's right ear hearing loss was not possible.  The examiner did not indicate that required information was missing or that current medical knowledge would yield multiple possible etiologies with none more likely than not the cause of the claimed disability.  Further, the Board notes that the examiner did not comment sufficiently concerning the Veteran's report of a shell landing and exploding on his right side during service.  The Board finds that the July 2008 VA examination and September 2008 addendum is not adequate and is of little probative value in this case.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of the Veteran's service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).  In this regard, the Board observes that the Veteran served in and around heavy equipment, was exposed to noise in connection with combat, and has given consistent and credible testimony that he has had significant right ear hearing loss since service.  The RO has already granted the Veteran service connection for left ear hearing loss and tinnitus on essentially the same facts that are before the Board at this time.  In view of the above, The Board finds that the Veteran's right ear hearing loss disability is likely etiologically related to active duty service.

The Veteran is competent to provide testimony and statements concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing noise exposure and tinnitus during or after service).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  While it may be argued that the competent evidence is in equipoise as to the Veteran having had a continuity of symptomatology of right ear hearing loss since service, in such cases, doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for right ear hearing loss is warranted.

The Board notes in passing that despite the efforts of the AOJ to obtain them, the Veteran's service treatment records, other than the July 1946 service separation examination, are not associated with the claims file.  In light of the absence of service medical records, the Board in this case has been cognizant of a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).


ORDER

Service connection for right ear hearing loss is granted.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs