Citation Nr: 1320908	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  10-03 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from April 1973 to August 1973.  He also has service with the National Guard.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln Nebraska.  


FINDING OF FACT

It is at least as likely as not that the Veteran has a bilateral hearing loss disability which is etiologically related to acoustic trauma during service.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, service connection for a bilateral loss disability is established.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for bilateral hearing loss which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary.

Legal Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  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).

For the purposes of applying VA laws, 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 the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system and therefore a presumptive disability.

In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The Board is to consider all lay and medical evidence as it pertains to the issues.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss.  In this regard, the Veteran contends that he has bilateral hearing loss related to noise exposure during service.  Specifically, the Veteran contends that he was exposed to loud noise from rifles, pistols, grenades, artillery, machine guns, and tanks during service.  The Board notes that the Veteran is considered competent to relate a history of noise exposure during service.  See 38 C.F.R. § 3.159(a)(2).  Moreover, his DD-214 reflects that the Veteran was a supply specialist and armorer.  As such, noise exposure during service is conceded.

With regard to whether the Veteran has a current disability, the preponderance of the medical evidence of record reflects that the Veteran has bilateral hearing loss that satisfies the criteria of 38 C.F.R. § 3.385.  Specifically, the July 2009 private treatment record and the October 2009 VA examination report reflect decibel thresholds which meet the criteria for bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385.  Moreover, the October 2009 VA examination report reflects speech recognition scores (using the Maryland CNC word list) of 64 percent bilaterally.  

The Board acknowledges that the March 2009 VA examination report reflects normal decibel thresholds bilaterally, as well as speech recognition scores of 98 percent in the right ear and 96 percent in the left ear.  The Board also recognizes that the October 2009 VA examiner indicated that the reliability of the examination was fair due to some inconsistent responses throughout the evaluation.  However, because the July 2009 private audiogram and the October 2009 VA audiogram results both show hearing loss, because these two audiological examinations were performed by different audiologists at different facilities, and because there is nothing in either report which reflects that the test results are invalid, the Board finds that the Veteran has a bilateral hearing loss disability for VA purposes.

Regarding whether the Veteran's bilateral hearing loss is etiologically related to his military noise exposure, the Board notes that there are two medical opinions of record, and both are in favor of the claim.  The October 2009 VA examiner opined that the Veteran's hearing loss is at least as likely as not related to his noise exposure during service and the July 2009 private audiologist opined that it is quite likely that the noise exposure the Veteran suffered during military service was the beginning of his hearing loss.

Therefore, in this case, there are two opinions in favor of the claim for service connection for bilateral hearing loss and no opinion against the claim.  As such, the preponderance of the evidence is in favor of the Veteran's claim, the Board concludes that service connection is warranted for bilateral hearing loss.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 .


ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs