Citation Nr: 1323925 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-07 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for right ear hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Louis, Missouri. The issues of service connection for bilateral hearing loss and tinnitus were the subject of a November 2012 Board remand. Subsequently, in an April 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for left ear hearing loss, and tinnitus, based on the medical findings and etiological opinion contained in a December 2012 rating decision. However, the AMC denied service connection for right ear hearing loss. As such, the remaining issue in appellate status is as noted above. FINDING OF FACT The Veteran's right ear hearing loss meets the definition of a hearing loss disability under 38 C.F.R. § 3.385 and a VA audiologist has linked the Veteran's current disability to his military service. CONCLUSION OF LAW The weight of the evidence shows that the Veteran's right ear hearing loss disability is etiologically related to his service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Furthermore, in light of the fully favorable decision below, the Board finds that any error in complying with VCAA would be harmless. Service Connection for right ear hearing loss. As noted above, the Veteran's claims of entitlement to service connection for bilateral hearing loss, as well as tinnitus, were remanded in a November 2012 Board decision for further development. Based on the results of a December 2012 VA examination which linked the Veteran's hearing loss to service, the AMC granted service connection for left ear hearing loss and tinnitus. The Veteran's right ear was denied service connection most recently in an April 2013 Supplemental Statement of the Case, because, while there was a medical opinion of record linking the Veteran's hearing loss to service, it was felt that the Veteran's most recent VA examination in December 2012 did not show a level of hearing loss in the Veteran's right ear, sufficient to be considered a disability for VA purposes. Audiological examination conducted in December 2012 reveals, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 35 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The Board is at a loss to understand how the AMC failed to find that the Veteran had hearing loss sufficient to constitute a disability for VA purposes. The determination of whether a Veteran has a current hearing loss "disability" is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) 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. While the Veteran did not have a finding of 26 decibels or greater in at least three frequencies, nor did the Veteran had speech recognition scores of less than 94 percent, the Veteran's puretone threshold at 4000 hertz exceeded 40 decibels. VA regulations clearly provide that hearing loss may also be considered a disability for VA purposes when ANY of the above noted frequencies is 40 decibels or greater. This section of 38 C.F.R. § 3.385 was somehow omitted from the AMC's recitation of that code in the April 2013 Supplemental Statement of the Case. The facts are indisputable that the Veteran was recorded as having a pure tone threshold of 70 decibels at 4000 Hertz. This finding is sufficient for the Veteran to be considered to have hearing loss for VA purposes in the right ear. Considering these indisputable facts, and the law, and the etiological opinion from the Veteran's December 2012 VA examination which linked the Veteran's hearing loss to service, the Board finds that service connection must be granted for the Veteran's right ear hearing loss. ORDER Entitlement to service connection for right ear hearing loss disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs