Citation Nr: 1325951 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-24 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that granted service-connection for tinnitus but denied service-connection for bilateral hearing loss. FINDING OF FACT Affording the Veteran the benefit of the doubt, the currently diagnosed bilateral hearing loss is related to military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as hearing loss, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A claimant may rely on lay evidence "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, 1377 (Fed. Cir. 2007). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced difficulty hearing. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Under 38 C.F.R. § 3.385, for VA purposes, impaired hearing will be considered to be a "disability" when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The absence of evidence of hearing loss in service is not a bar to an award of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims his bilateral hearing loss began during service, where he was assigned to field artillery and routinely exposed to noise trauma, without ear protection. See Veteran's Application for Compensation and/or Pension, October 2010; see also VA Audiological Examination, March 2011. Post-service, the Veteran worked as a carpenter for two years and in an oilfield two years, both without hearing protection, and as a fireman for 25 years with hearing protection. See VA Audiological Examination, March 2011. The Board finds no reason to doubt the Veteran's description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Exposure to acoustic trauma in-service is conceded. His service treatment records are silent as to any complaints, treatment or diagnoses of hearing loss. The Veteran's November 1963 entrance examination noted his ears were normal and that he had normal hearing. A January 1964 audiogram documented that the Veteran's hearing was within normal limits. Upon his October 1965 separation examination, the Veteran's hearing still did not meet VA's standard for a hearing loss disability. However, a comparison of the 1963, 1964, and 1965 audiograms strongly suggest that an upward shift of hearing thresholds in both ears occurred during active service. An April 2011 VA audiogram shows that the Veteran's bilateral hearing loss currently meets VA's disability requirements. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Veteran has consistently claimed that he experienced hearing loss during service. See Veteran's Application for Compensation and/or Pension, October 2010; see also Veteran's VA Form 9, August 2011. The Veteran's statements concerning noise exposure during service are credible as they are consistent with his service record and acoustic trauma in-service has been conceded. The Veteran's lay statements of experiencing hearing loss since service must be accorded some weight, as they are competent, credible, and therefore persuasive regarding the onset and continuing symptomatology of his hearing loss since service. See Walker v. Shinseki, 706 F.3d 1331 (Fed. Cir. 2013); Jandreau, 492 F.3d at 1377; see also Charles, 16 Vet. App. at 374. The Board concludes that the Veteran's lay evidence provides a medically sound basis to attribute the current hearing loss to noise exposure in service since sensorineural hearing loss is a chronic disability. See Walker. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, which was based, in part, on the fact that the Veteran's hearing was within normal limits during service and upon discharge. However, the VA examiner's opinion did not consider that VA regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. at 160. Additionally, when rendering the opinion, the examiner failed to consider the Veteran's bilateral upward shifting of hearing thresholds during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Therefore, the VA examination has limited probative value. The Board finds the evidence is in equipoise as to whether the Veteran's hearing loss is related to service. The evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability; that he was exposed to acoustic trauma in service; that during service he experienced an upward shift, showing a decline in hearing ability; and that he has experienced hearing loss since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56. The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs