Citation Nr: 1325909	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-15 827	)	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.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran served on active duty from September 1980 to September 1983.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.


FINDINGS OF FACT

1.  The Veteran served as an infantryman during military service in the U.S. Army, and was exposed to such acoustic trauma from explosions, live weapons, and vehicles during service.

2.  The record contains competent medical and lay evidence indicating that the Veteran has a right ear hearing loss disability according to VA standards, which is causally related to his military service.


CONCLUSION OF LAW

A right ear hearing loss disability was incurred in active military service and service connection for this disability is warranted.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Given the favorable disposition of the Veteran's claim, the Board finds that all notification and development action needed to render a fair decision on these aspects of the appeal has been accomplished.

II.  Service Connection

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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 of record 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.  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).

When there is an approximate balance in the 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); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.

The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).

Service connection may 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).

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 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted into the record.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

The Veteran claims that he has right ear hearing loss due to acoustic trauma during service as an infantryman.

The Board finds that the medical evidence of record supports the Veteran's contention that he has a right ear sensorineural hearing loss disability that is causally related to noise exposure he experienced in service.  The Veteran reported a history of military noise exposure due to service, and the Veteran's DD Form 214 states that the Veteran's military occupational specialty was as an infantryman.  According to the Veteran, he had in-service noise exposure due to working as a grenade simulator and exposure to excessive noise from explosions, live weapons, and vehicles during training exercises without the benefit of hearing protection.  In the May 2011 Statement of the Case, the RO conceded exposure to acoustic trauma based on the Veteran's service as an infantryman.  As such, the Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a) and (b) (West 2002).

Impaired hearing will be 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 the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran's STRs are void of any diagnosis of right ear hearing loss.  However, reports of medical history dated in August 1982 and August 1983 indicate complaints of hearing loss.

On VA audiological examination in August 2010, the Veteran presented with a history of bilateral hearing loss since his service.  He stated that he noticed hearing problems in 1981 after being in a grenade simulator in a confined area.  As previously noted, the Veteran stated that he experienced excessive noise to explosions, live weapons, and vehicles during training exercises without hearing protection.  As a civilian, he had been employed as a policeman from 1985 to the present.  He had qualifications twice per year with hearing protection.  Recreationally, he had gone hunting once per year for 26 years with hearing protection.

On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
150
15
20
30
60

Speech audiometry revealed speech recognition ability of 98 percent in the right ear.

The examiner diagnosed normal to moderately severe sensorineural hearing loss in the right ear which she opined is not at least as likely as not related to his service based on the rationale that the Veteran had normal hearing in the right ear at separation.  Notably, the examiner found that the Veteran's pre-existing left ear hearing loss was related to service as there was evidence of left ear hearing loss on separation examination.

In this regard, the VA audiological examiner based the entire opinion on the absence of any right ear hearing loss during the Veteran's service and did not provide any reason why the Veteran's in-service acoustic trauma was not a source of his current right ear hearing loss; the Board points out that the VA audiological examiner conceded that the Veteran had noise exposure during service.  Hensley v. Brown, 5 Vet. App. 155, 159 (1993) ("[§ 3.385] operates to establish when a measured hearing loss is...a 'disability' for which compensation may be paid, provided that the requirements for service connection are otherwise met...").  Further, in Hensley, the Court indicated that a veteran need not have met the requirements of 38 C.F.R. § 3.385 while in service, only presently.  Hensley, 5 Vet. App. at 158-59.  See also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The VA examiner's conclusory opinion based in part on the absence of documented right ear hearing loss at discharge from service does not mean that there is no nexus between the Veteran's current right ear hearing loss and his in-service noise exposure which lessens its probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that most of the probative value of a medical opinion comes from its reasoning).  Additionally, the same examiner related the Veteran's left ear hearing loss and tinnitus to his service based on military noise exposure.  In this regard, it seems counterintuitive to relate the Veteran's left ear hearing loss and tinnitus to military acoustic trauma while alternatively finding that his right ear hearing loss is not related to military acoustic trauma, especially considering the fact that the examiner has identified no other etiology for the Veteran's right ear hearing loss.

In addition, the Veteran consistently and credibly contended that in-service noise exposure caused his right ear hearing loss and that it has been continuing to the present.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the Board finds that the examiner's opinion regarding right ear hearing loss was apparently based, in part, on an erroneous assumption that service connection for this condition required a documentary showing of hearing loss in service.  Simply put, had the VA examiner known that such a documentary showing was not required, the Board believes that the VA examiner would have opined a relationship between right ear hearing loss and the Veteran's period of active service considering that the examiner found that the Veteran's left ear hearing loss and tinnitus were related to acoustic trauma during his service.  Thus, the Board finds that to the extent it is probative, the August 2010 medical opinion actually supports the Veteran's claim.  The Veteran is also competent to observe the presence of right ear hearing loss during and after his service and the Board finds his account of in-service onset of right ear hearing loss to be additional probative evidence in support of his claim.  The Veteran's statements as to his symptoms and experience additionally support a finding of both chronicity and continuing disability.  Consequently, the competent and credible medical evidence of record supports the Veteran's claim.

The evidence in this case is at least in equipoise with regard to the cause of the Veteran's current right ear hearing loss.  Accordingly, service connection is warranted for the Veteran's right ear hearing loss disability.  The claim, therefore, is granted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

ORDER

Entitlement to service connection for right ear hearing loss is granted.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs