Citation Nr: 1325285	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  10-11 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for left ear hearing loss.  


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from October 1961 to October 1964 and from March 1969 to August 1971.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for hearing loss of the left ear and a rating in excess of 10 percent for hearing loss of the right ear.  The Veteran disagreed with both denials, but after issuance of the statement of the case, he appealed only the denial of service connection for left ear hearing loss.  


FINDING OF FACT

Left ear hearing loss was first manifested on separation from the Veteran's first period of service and during his second period of service.  


CONCLUSION OF LAW

Left ear hearing loss was incurred in service.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 (West 2002); 38 C.F.R. § 3.303(a) (2012).  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) (2012).  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) (2012).

Where a veteran who served for ninety days or more during a period of war, or during peacetime service after December 31, 1946, develops certain chronic diseases, such as sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, that disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 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 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a) (2012).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  The Board will summarize the relevant evidence where appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  Coburn v. Nicholson, 19 Vet. App. 427 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F. 3d 1372 (2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465 (1994).

A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (2012).  Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge.  Personal knowledge is that which comes to the witness through the use of the senses.  Lay testimony is competent only so long as it is within the knowledge and personal observations of the witness.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007). 

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (2007).  A Veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).

VA must consider the competency of the lay evidence and cannot outright reject lay evidence on the basis that lay evidence can never establish a medical diagnosis or nexus.  However, that does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so.  The Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).

The Veteran contends that service connection should be established for hearing loss of his left ear.  It is asserted that audiometric testing performed during the Veteran's second period of service showed a hearing loss in the left ear.  

Hearing loss shall not be considered a disability when the auditory threshold for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when the speech recognition scores used in the Maryland CNC tests are less than 94 percent.  38 C.F.R. § 3.385 (2012). 

Audiometric testing measures threshold hearing levels in decibels over a range of frequencies in Hertz.  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 (1993).  

On examination for entry into the Veteran's first period of service no pertinent abnormality was demonstrated.  During the Veteran's first period of active duty, decreased hearing acuity of right ear was noted.  Audiometric testing in August 1963 showed pure tone thresholds in each ear to be 25 decibels in each ear at 8000 Hertz.  On examination for separation from active duty audiometric testing of the left ear showed normal hearing acuity at 500, 1000, and 2000 Hertz and a level of 25 decibels at 4000 Hertz.  

During the Veteran's second period of active duty the Veteran was afforded an audiometric examination in April 1970 that showed air conduction threshold levels as follows:

Hertz
500
1000
2000
4000
Left ear
25
20
15
15

The examiner commented that the Veteran had mild loss on the left side.  

On examination for separation from the Veteran's second period of active duty audiometric testing showed air conduction threshold levels to be as follows:

Hertz
500
1000
2000
3000
4000
6000
Left ear
25
20
10
25
25
75

Subsequent audiometric testing continued to show hearing loss in the left ear.  On examination by VA in March 2009, audiometric testing showed air conduction threshold levels to be as follows:

Hertz
500
1000
2000
3000
4000
Left ear
10
10
25
45
45

Speech recognition in the left ear at 70 decibels was 96 percent.  Those findings meet the criteria to be considered hearing loss disability.  38 C.F.R. § 3.385 (2012).  The examiner stated that it would be speculation to say anything about the hearing in his left ear at separation from service in 1971.

The Veteran's hearing acuity is presumed to have been normal at entry to service.  38 C.F.R. § 3.303 (2012).  His hearing showed some loss with a threshold of greater than 20 on separation.  He continued to exhibit left ear hearing loss during his second period of active duty.  In March 2009, audiometric testing showed hearing acuity that met the VA criteria for hearing loss disability.  The Veteran has credibly asserted a continuity of symptomatology of hearing loss since separation from service.  38 C.F.R. § 3.303 (2012).

Accordingly, the Board finds that it is at least as likely as not that the Veteran's left ear hearing loss had its onset during service.  Therefore, service connection for left ear hearing loss is granted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for left ear hearing loss is granted.  



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs