Citation Nr: 1326833	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  10-05 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas


THE ISSUES

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1962 to December 1962.  He also had several years of service with the Reserve.

This matter comes to the Board of Veterans' Appeal (Board) on appeal from an October 2009 decision of the RO.  

In August 2012, the Veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO.  The hearing transcript is associated with the claims folder.  At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration of such evidence.

A review of the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. 


FINDINGS OF FACT

1.  The Veteran's assertions of having in-service exposure to hazardous noise levels during service and experiencing hearing problems continuing thereafter are credible.  

2.  The currently demonstrated bilateral hearing loss disability is shown as likely as not to be to have its onset following the Veteran's exposure to hazardous noise levels during service.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his bilateral hearing loss disability is due to disease or injury that was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

To the extent that the action taken hereinbelow is favorable to the Veteran, a full discussion of compliance with VA's duty to notify and assist is not required at this time.


Law & Analysis

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

In order to establish service connection, the following must be shown: (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, 1167 (Fed. Cir. 2004). 

Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 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).

Where there is a chronic disease shown 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).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); see Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  

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).  

In addition, sensorineural hearing loss may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran contends that his current bilateral hearing loss is due to noise exposure in active duty training.  His military occupational specialty as indicated on the DD Form 214 was in field artillery.  

Specifically, the Veteran asserts that noise exposure in service occurred while training on the firing range, including firing artillery weapons and loading cannons with shells and firing in succession, for approximately two weeks.  Furthermore, he contends that his diminished hearing began ever since he was present for the accidental explosion which occurred in September 1962 in Fort Sill, Oklahoma.  The Veteran also submitted copies of newspaper articles regarding the 1962 explosion.  

The Board concedes that the Veteran was exposed to hazardous noise during service.

The service treatment records do not show that the Veteran had complaints or findings of hearing problems during service.  In-service audiograms, to include the separation audiogram conducted in December 1962, showed (upon conversion to ISO ANSI units).  The record does not show that the Veteran had hearing loss pursuant to VA regulations within one year from separation from service.  

However, the Board notes that the absence of in-service evidence of hearing loss during the Veteran's period of active duty is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Veteran was afforded a VA examination in September 2009, where he was diagnosed with moderate to severe high frequency sensorineural hearing loss in both ears upon audiometric evaluation (meeting the VA regulation for hearing disability).  Thereafter, the VA examiner provided a negative nexus opinion, but did not provide any supporting rationale for her opinion.  Thus, the Board accords little probative value to the 2009 VA examiner's opinion.  

In support of his claim, the Veteran submitted lay statements (personal and statements of his wife), copies of newspaper articles, copies of Internet articles regarding noise induced hearing loss, and private treatment records and medical opinion.

The Veteran obtained a positive nexus opinion from an audiologist who noted that the Veteran had undergone a complete audiology evaluation in October 2009 that revealed findings of a mild to severe high frequency hearing loss in each ear.  She elaborated on the Veteran's reports of noise exposure in service and based on the lay statements and audiology examination, opined that it was likely that the Veteran's hearing loss was caused by or contributed to by his noise exposure in service.  The Board finds that the audiologist provided an opinion which contained consideration and a discussion of the pertinent factual events.  

The VA later requested a medical opinion in November 2011 from a different VA examiner.  Upon review of the claims folder, this examiner commented on the audiologist's opinion, stating that a rationale was not provided accompanying her opinion nor did she examine the Veteran's claims folder.  He ultimately opined that because the Veteran's hearing thresholds were within normal limits throughout his period in active service and based on his belief that research suggested that there was no scientific basis for the existence of delayed-onset hearing loss, the Veteran's current hearing loss was less likely as not a result of noise exposure in service.  

The Board recognizes that a medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion; it is not just the mere fact that the claims file was reviewed or not reviewed, that contributes probative value to a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

Here, given the medical opinions of record, the Board finds that the evidence to be in relative equipoise in showing that the Veteran's hearing loss disability as likely as is due to his exposure to elevated and hazardous noise exposure during service.

In resolving all reasonable doubt in the Veteran's favor, service connection for the Veteran's bilateral hearing loss disability is warranted.


ORDER

Service connection for bilateral hearing loss disability is granted.



____________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs