Citation Nr: 1325433	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  08-16 086	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for left ear hearing loss.  


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel



INTRODUCTION

The Veteran had certified active service from December 1984 to March 1985; from March 2005 to September 2005; and from December 2005 to January 2007.  He had additional duty with the Florida National Guard.  The Veteran was reported to have "served in a designated eminent danger pay area."  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, denied service connection for left ear hearing loss.  In April 2010, the Board remanded the Veteran's appeal to the RO for additional action.  

In March 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in audiology.  In May 2013, the requested VHA opinion was incorporated into the record.  In May 2013, the Veteran and his accredited representative were provided with copies of the VHA opinion.  In June 2013, the representative submitted additional argument.  

FINDING OF FACT

Left ear hearing loss has been shown to have originated during active service.  

CONCLUSION OF LAW

Left ear hearing loss was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).  

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this decision, the Board grants service connection for left ear hearing loss.  Therefore, no further discussion of VA's duties to notify and to assist is necessary.  

II.  Service Connection

The Veteran asserts he has left ear hearing loss as a result of his inservice noise exposure and a traumatic brain injury (TBI).  

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; 338 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.  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).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

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 an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  
Organic diseases of the nervous system including sensorineural hearing loss are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a).  Therefore, 38 C.F.R. § 3.303(b) is for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  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 for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385).  The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

A May 2007 VA Formal Finding on the Unavailability of Service Medical Records indicates that attempts to obtain the Veteran's complete service treatment records were unsuccessful.  The service treatment documentation of record indicates that the Veteran was diagnosed with left ear hearing loss.  A December 2005 audiological examination indicated pure tone thresholds, in decibels, for the left ear were as follows: 




HERTZ



500
1000
2000
3000
4000
LEFT
75
50
55
75
85

The Veteran was diagnosed with hearing loss disability.  

A December 2007 VA treatment record states that the Veteran served in Afghanistan and was diagnosed with having sustained a TBI during that deployment.  An April 2008 VA audiological evaluation states that the Veteran's "left ear indicates revealed normal hearing to 1000 Hz in left ear and drops to severe [high frequency sensorineural hearing loss]."  The Veteran's word recognition score in the left ear was 84 percent.  

The May 2013 VHA audiology opinion notes that the record was reviewed.  The VA audiologist opined that:  

Given that [the] Veteran served in a combat zone; given that it was reported in his C-file/Treatment record that he experience a TBI while in the military; given that [the] Veteran reported that he first noted a hearing problem while he was in the military; and given that several evaluations conducted from 2005 through 2008 indicate significant threshold shifts in service bilaterally, it is believed to be at least as likely as not that [the] Veteran's pre-existing hearing impairment was permanently aggravated by service-related combat noise exposure/acoustic trauma.  

The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal.  The Veteran's complete service treatment documentation is not of record through no fault of his own.  He has been diagnosed with left ear sensorineural hearing loss which was initially shown during active service.  The May 2013 VHA opinion indicates that the Veteran's left ear sensorineural hearing loss was manifested during active service.  Given these facts, the Board concludes that the evidence is at least in relative equipoise as to the issue of service connection for left ear hearing loss.  Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for left ear hearing loss is now warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


ORDER

Service connection for left ear hearing loss is granted.  



____________________________________________
J. T. HUTCHESON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs