Citation Nr: 1323734 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 12-23 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1944 to June 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2011 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. 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 Veteran's bilateral hearing loss is shown to have developed as a result of noise exposure during combat service. CONCLUSION OF LAW Bilateral hearing loss was incurred in military service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by that service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2012). Once the requirements of 38 C.F.R. § 3.385 (2012) have been met and a present hearing disability for VA purposes is found, a determination must be made as to whether the current hearing disability is related to service. Even if a Veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active military service. The threshold for normal hearing is 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record shows that the Veteran participated in battles and campaigns in the Rhineland and Central Europe during active service. He was awarded medals and awards including the Combat Infantryman Badge. An April 1947 discharge examination report revealed whispered voice hearing acuity of 15/15, bilaterally. In statements and testimony in support of his claim, the Veteran reported having been exposed to military weapons noise and having noticed a serious ringing noise in the ears and hearing trouble after returning home from service. His spouse of 63 years noted he had occasionally complained of noises in his ears and had accused her of not speaking clearly. A July 2011 VA audiology examination revealed normal to severe sensorineural right ear hearing loss and normal to moderately severe sensorineural left ear hearing loss. The examiner noted whispered speech tests were known to be unreliable because they are insensitive to high frequency loss, but that without audiometric information it could not be determined if the Veteran's hearing loss began during service or changed significantly during military service. An opinion could not be provided as to whether the current hearing loss was related to noise exposure in service without resorting to speculation. The Veteran's tinnitus was found as likely as not to have been the result of noise exposure sustained during military service. In correspondence dated in September 2011, a private audiologist noted the Veteran's hearing loss was indicative of hearing loss associated with some noise exposure. The examiner stated that it could not be explicatively stated that his loss was caused by military noise exposure, but that it could not be stated that it was not caused by military noise exposure. It was further noted that his case history was positive for high levels of noise on active duty and that exposure to such amounts of noise can affect hearing ability immediately at the time of exposure and years and decades after the prolonged exposure. Tinnitus, it was noted, could be a side effect of noise exposure and noise-induced hearing loss. In correspondence dated in June 2013, another private audiologist found that, based upon a review of the evidence, the degree and pattern of the Veteran's hearing loss and tinnitus were more likely than not caused by his military exposure to intense noise while on active duty. It was noted that his case history was positive for having been exposed to high levels of noise during active service and that the results of his puretone testing was consistent with that case history. Based upon the evidence of record, the Board finds the Veteran's bilateral hearing loss is shown to have developed as a result of noise exposure during combat service. His service records include awards indicative of combat. As a combat Veteran, his statements as to having experienced acoustic trauma and hearing loss in service which are consistent with the circumstances of his service are accepted notwithstanding the fact that there is no official record of the incurrence. The Board also finds that the June 2013 private audiologist's opinion in this case is persuasive. The opinion is shown to have been based upon a substantially completed review of the evidence of record and is consistent with the opinion of the July 2011 VA examiner as to the relationship between noise exposure in service and tinnitus. The Board finds that it is at least as likely as not that the Veteran's bilateral hearing loss is the result of noise exposure during his service. Therefore, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs