Citation Nr: 1327351 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-22 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1970, including over two years of service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2012 and May 2013, the Board remanded the case for further development. Since the Veteran's appeal was last adjudicated in July 2013, the Veteran submitted evidence relevant to his appeal without a waiver of initial RO consideration. However, in light of the disposition of this appeal, namely the grant of the benefit sought, any failure to remand the appeal to allow for initial RO consideration of this newly submitted evidence is rendered moot. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during service. 2. The Veteran experienced bilateral hearing loss during and continually since service. 3. The Veteran is currently diagnosed with bilateral sensorineural hearing loss. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection Claim In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran contends that during his 26 months of service in the Republic of Vietnam, he was engaged in combat and was exposed to excessive noise from firearms, bomb explosions, and jet and helicopter engines, without issued hearing protection, resulting in his current bilateral hearing loss. The Veteran asserts that his post-service career as a high school teacher did not contribute to his current hearing loss, and that, while he had perceived some decrease in hearing acuity during and since service, his hearing loss was first detected in 1985 by an audiogram required by his employer (as a prerequisite to mandatory school bus driving lessons for all high school teachers). Certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A hearing loss disability is defined by regulation. For purposes of applying the laws administered by VA, 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; when the auditory thresholds for at least three of the above frequencies 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 Veteran's report of in-service exposure to acoustic trauma is corroborated by his personnel records, which reflect two years of service in the Republic of Vietnam during the Vietnam Conflict. Decisions issued by the RO reflect that VA has conceded the Veteran's exposure to acoustic trauma and his participation in combat, as the Veteran's is service-connected for tinnitus, resulting from acoustic trauma during service, and for posttraumatic stress disorder, resulting from traumatic combat-related experiences during his service in Vietnam. While the Veteran's service treatment records do not expressly reference his complaints of experiencing decreased hearing acuity during service, a comparison of the results of audiograms conducted on entrance to service and on separation from service reflects an in-service decrease in hearing acuity, as the Veteran's hearing acuity decreased by at least 10 decibels in hearing frequencies from 500 to 3000 Hertz. As a decrease in hearing acuity is a symptom capable of lay observation, the Veteran is competent to report the onset of his perceived hearing loss during service and continuity of hearing loss symptoms since service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As his reports are uncontroverted by the evidence of record and have remained consistent over time, the Veteran's report of experiencing a hearing loss during and since service is credible. Thus, the Veteran's competent, credible statements regarding the onset and continuity of his hearing loss symptoms are accorded great probative value. The Veteran underwent VA audiological examinations in February 2007, June 2010, and June 2013, during which he was diagnosed with bilateral sensorineural hearing loss. The 2010 VA examination report did not address the relationship between the Veteran's in-service acoustic trauma and his current bilateral hearing loss (but rather addressed the potential relationship between his in-service ear infections and his current hearing loss), and the 2007 and 2013 VA examiners provided insufficient medical nexus opinions. With regard to the 2007 VA medical opinion, in determining that the Veteran's current sensorineural hearing loss is unrelated to service, the examiner cited the lack of in-service audiometric findings reflecting decreased hearing acuity in service and the Veteran's report of the onset of his hearing loss in 1985. However, a complete review of the record reflects the Veteran's assertion that his hearing loss was first detected in 1985, not that hearing loss began at that time. The opinion provides no proffered etiology for the Veteran's current hearing loss, which is relevant to the appeal given the Veteran's assertion of significant in-service noise exposure and minimal post-service noise exposure. This omission is even more significant given that the examiner did find a relationship between the Veteran's noise-induced tinnitus and service. The opinion is accorded no probative value. The Board remanded the opinion in May 2013 to obtain a new VA audiological examination and medical opinion. The Board directed the examiner to consider that the Veteran was exposed to acoustic trauma during his two years of Vietnam service; that he reports minimal noise exposure in his post-service career as a high school teacher; that he reports that his hearing loss was first detected in 1985 by his employer's audiogram (not that his hearing loss began in 1985); and that he is currently service-connected for tinnitus as the result of in-service noise exposure. The Board further directed the examiner to provide the likely etiology of the Veteran's hearing loss, if the examiner determined that the hearing loss is unrelated to service. The opinion proffered in June 2013 stated that the Veteran's hearing loss was unrelated to service, as a comparison of audiograms conducted on entrance and separation from service failed to reflect a significant shift in hearing acuity, and as the Veteran was assessed with normal bilateral hearing loss on separation. This opinion is non-compliant, as there is no indication that the examiner considered the facts set forth in the Board's remand directives. Indeed, no etiology was offered for the Veteran's current bilateral hearing loss, and the Veteran's service connection for tinnitus was not considered. Rather, the examiner offered an etiology opinion on tinnitus, deeming it unrelated to service, apparently unaware that service connection for tinnitus was already in effect. The examiner failed to explain how the decrease in hearing acuity, reflected by a comparison of the audiograms performed at entrance and separation from service, did not represent a significant shift in hearing acuity. The examiner failed to consider the Veteran's competent and credible reports of the onset of his hearing loss symptomatology in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board may not rely on an insufficient and non-compliant VA medical opinion when adjudicating an appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The opinion is accorded no probative value. The probative evidence of record reflects the Veteran's exposure to acoustic trauma during service; his competent, credible reports of experiencing the onset of his hearing impairment during service and a continual hearing impairment since service; and a current diagnosis of bilateral sensorineural hearing loss. As sensorineural hearing loss is a chronic disease as contemplated by 38 C.F.R. § 3.309(a), the Veteran may establish service connection eligibility for this currently-diagnosed disease based on his credible reports of continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for bilateral hearing loss is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs