Citation Nr: 1322346	
Decision Date: 07/12/13    Archive Date: 07/18/13

DOCKET NO.  11-12 832	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Boise, Idaho



THE ISSUE

Entitlement to service connection for bilateral hearing loss.



REPRESENTATION

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



ATTORNEY FOR THE BOARD

G. Jackson, Counsel




INTRODUCTION

The Veteran served on active duty from April 1970 to December 1973.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the RO.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDINGS OF FACT

1.  The currently diagnosed sensorineural hearing loss sloping from mild to profound in the right ear and from moderate to profound on the left is shown as likely as not to have had its clinical onset after the Veteran's exposure to harmful noise levels incident to his duties during his period of active service.  

2.  The Veteran is found to have presented credible lay assertions that are sufficient to establish the presence of hearing loss after his exposure hazardous noise level during combat in the Republic of Vietnam.  


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by a bilateral sensorineural hearing loss is due to disease or injury that was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

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


Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

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, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 

As noted, sensorineural hearing loss is a chronic disease.  38 U.S.C.A. § 1101.  The appellant does have bilateral hearing loss. 

Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). 

In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).


Analysis

Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2011).

The Veteran asserts that his exposure to mortar fire while serving in the mortar unit in the Republic of Vietnam caused his bilateral hearing loss.

An April 1970 audiogram during service suggests the presence of deficient hearing at the 4000 Hertz frequency.  Otherwise, the service treatment records show no complaints or findings of hearing loss.  The Board notes, however, that the absence of in-service evidence of hearing loss is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

Here, the Board finds that the Veteran was a light weapons fire crewman in service and received a Combat Infantry Badge (CIB) for his recognized combat status.

In the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation, and, to that end, every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

Hence, the Veteran's assertions of being exposure without hearing protection to significant acoustic trauma in the form weapons fire while serving in the Republic of Vietnam are deemed to be credible and found to be clearly consistent with the conditions of his service.  

Moreover, his lay statements about experiencing hearing difficulty after he got out of service are found to be credible and probative in linking the onset of current bilateral profound sensorineural hearing loss to that period of active service.  

The October 2009 report of VA examination reflects the Veteran's complaint of bilateral hearing loss.  He reported serving as a mortar man in Vietnam.  He was exposed to 81 mm mortars and explosions, APC track equipment and tanks.  He reported wearing ear protection for training, not during actual combat.  

The Veteran reported having difficulty hearing when he got out of the service.  Subsequent to service, he reported working for the telephone company and having minimal occupational noise exposure (vehicles on the streets and highway noise).  Reportedly, his recreational noise exposure included that due to hunting once or twice per year with no ear protection worn.  

Objective audiometric testing clearly showed that the Veteran has a bilateral hearing loss to an extent recognized as a disability for VA purposes.  See 38 C.F.R. § 3.385.  

The audiologist noted review of the claims file, including the service treatment records (noting that the entrance examination showed mild hearing loss in the left ear only and normal separation examination).  

The audiologist concluded that the Veteran had hearing that was within normal limits at the time of separation from active duty and that his current hearing loss was less likely than not due to active duty noise exposure.  However, the probative value is limited to the extent that the examiner did not address the Veteran's lay assertions in providing his opinion.  

Moreover, to the extent that the examiner based his opinion on normal audiometric findings noted in connection with the separation examination, the Board finds the actual recorded findings to be of limited reliability for the purpose of determining the Veteran's hearing status at that time.  

Given its review of the record, the Board finds the evidence to be in relative equipoise in showing that the Veteran's current bilateral sensorineural hearing loss as likely as not had it onset in service as the result of harmful noise exposure while participating in combat with enemy in the Republic of Vietnam.   

In this case, the Board finds that the audiologist did not offer an adequate rationale for her conclusion in the October 2009 VA examination report. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion"); Miller v. West, 11 Vet.App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.").  

However, the Board does find that the Veteran has competently and credibly asserted that his bilateral hearing loss was due to acoustic trauma sustained in service and has been continuous since that time.  38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(b), 3.304(d); Walker, 2013 WL 628429 at *8; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  

In resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted.



ORDER

Service connection for bilateral hearing loss is granted.



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



Department of Veterans Affairs