Citation Nr: 1327290 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-13 579 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for claimed bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to December 1963. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2007 by the RO. The Veteran's original claim of service connection for a bilateral hearing loss disability had been denied by the Board in a May 2005 decision. In June 2012, the Board reopened the claim and remanded the matter for further development. A review of the Virtual Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of service-connected for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The currently demonstrated bilateral sensorineural hearing loss disability is shown as likely as not to be due to the exposure of hazardous and harmful noise levels that began during the Veteran's period of active 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. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of (the Veterans Claims Assistance Act of 2000) VCAA is not required at this time. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Regulation Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. 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). Generally, in order to prevail on the merits 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant must prevail as to his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In this case, the Veteran asserts that his bilateral hearing loss is the result of his exposure to loud noise in connection with his duties during service. The Veteran's DD Form 214 reflects that he served as an artillery surveyor with an artillery battalion. In connection with a September 1961 pre-induction examination, his hearing acuity was reported as 15/15, bilaterally, based on whispered voice testing. During service, the Veteran was treated for otitis externa, for which he is presently service connected. On separation examination in September 1963, the audiogram indicates pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) n/a 10 (15) LEFT 0 (15) 0 (10) 0 (10) n/a 10 (15) The figures in parenthesis represent audiometric thresholds in ANSI/ISO units, the standard currently in effect for audiometric data. An April 2002 private test showed slight to moderate left ear sensorineural hearing loss and mild to moderate right ear sensorineural hearing loss. In an August 2002 VA peripheral nerves examination report, a neurologist attributed the Veteran's hearing loss to ear infections during active service. A September 2002 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT n/a 35 35 45 40 LEFT n/a 30 35 35 40 Speech recognition scores were 88 percent in the right ear and 80 percent in the left ear. The examination report indicated that the results should not be used for rating purposes. The examiner indicated that it was not likely that hearing loss was related to military noise exposure as hearing thresholds were within normal limits at separation. In a May 2007 statement, a private physician opined that there was a "possibility" that the Veteran's hearing loss was associated with exposure to artillery blasts while serving in the military. In August 2007, the Veteran submitted orders pertaining to his participation in artillery school and a statement from a fellow service member supporting his assertions of being exposed to elevated and potentially harmful noise levels during service. In a July 2008 statement, an otolaryngology (ENT) specialist noted that the Veteran's history of mild sloping to moderately severe sensorineural hearing loss in both ears. He stated that there was a "possibility" that his hearing loss was a result of exposure to artillery blasts while serving in the military. In a May 2009 statement, Dr. JPD, MD, noted the Veteran's history of in-service noise exposure and stated that there was a "strong probability" that his in-service exposure to artillery blasts contributed to his hearing loss. An August 2012 VA examination audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 45 55 LEFT 30 30 30 35 45 Speech recognition scores were 92 percent, bilaterally. The examiner opined that it was less likely than not that the onset of hearing loss was due service related noise exposure or acoustic trauma. The examiner reasoned that the Veteran had normal hearing on separation from service. The examiner also noted that the configuration of the Veteran's current hearing loss (sloping sensorineural) was not consistent with acoustic trauma. As noted, the Veteran's DD Form 214, reflects that he served as an artillery surveyor with an artillery battalion. Thus, his reports of in-service noise exposure appear to be consistent with his duties. The Veteran is competent to describe his exposure to loud noise in service. Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notwithstanding evidence of in-service noise exposure, service connection requires that there be a current disability related to such exposure. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence shows that the August 2012 VA audiology examination yielded results that would service to establish the presence of bilateral hearing loss for compensation purposes. Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current bilateral sensorineural hearing loss disability as likely as not was due to the exposure to hazardous noise levels during his period of active service. Under the benefit-of-the-doubt rule, however, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss disability is warranted. 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs