Citation Nr: 1327912 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-32 034 ) 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 W. Yates, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2011, the Board issued a decision which reopened the Veteran's claim of entitlement to service connection for bilateral hearing loss; denied on the merits the reopened issue of entitlement to service connection for left ear hearing loss; and remanded the reopened issue of entitlement to service connection for right ear hearing loss for additional evidentiary development. In December 2011, November 2012, and April 2013, the Board remanded this matter for additional evidentiary development. This appeal was processed using VA's Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take the existence of this electronic record into account. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current right ear hearing loss cannot be reasonably disassociated from his military service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). For the 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, 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 speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013). The Veteran is seeking entitlement to service connection for right ear hearing loss. He attributes this disability to his extensive inservice exposure to jet engine noise while performing his duties as a radar technician for aircraft. The Veteran served on active duty in the Air Force from March 1955 to January 1958. His report of separation, Form DD 214, listed his inservice specialty as a weapons system mechanic. The Veteran's January 1955 entrance examination noted that his ears were normal. Whispered voice testing performed at that time revealed findings of 15/15, bilaterally. The Veteran's service treatment records are silent as to any complaints of or treatment for hearing loss. His separation examination was conducted in January 1958. Whispered voice testing performed at that time revealed findings of 15/15, bilaterally. An audiological evaluation performed at that time revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) 5 (15) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) (Note: The January 1958 audiometric test results were reported in standards set forth by the American Standards Association (ASA). The ASA results are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). Normal hearing is from 0 to 20 decibels, and higher levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the Veteran's January 1958 separation examination establishes inservice hearing impairment in the Veteran's right ear. Available post service treatment records document right ear hearing loss for VA purposes beginning as early as the Veteran's March 2007 VA audiological examination. 38 C.F.R. § 3.385. Thus, the remaining issue to be determined is whether there is any relationship between the Veteran's current right ear hearing loss and his military service. Throughout the course of this appeal, the Veteran has been afforded multiple VA audiological examinations to ascertain whether there is a relationship between the Veteran's current hearing loss and his military service. Each of these examinations, performed in March 2007, June 2011, August 2011, and December 2012, yielded a negative opinion. Each of these opinions, however, were based upon the incorrect factual finding that the Veteran exhibited normal right ear hearing acuity at the time of his January 1958 separation examination. As noted above, the Veteran has some documented right ear hearing loss during service. Hensley, 5 Vet. App. at 157. Having tried unsuccessfully to correct this erroneous factual assumption through four prior Board remands, the Board now concludes that the VA medical opinions obtained are of little probative value. In support of his claim, the Veteran submitted a private medical opinion from K.S., Doctor of Audiology. The opinion letter noted the Veteran's inservice and post service history of noise exposure. Based upon a review of the Veteran's inservice treatment records, his inservice duties, and the Veteran's contentions, K.S. opined that the Veteran's current hearing loss more likely than not related to his military noise exposure. In support of this opinion, K.S. noted that whispered voice testing during the Veteran's service treatment records were not reliable, and not capable of confirming or denying the presence of hearing loss. The Veteran's statements are competent evidence to relate a history of noise exposure during service. Further, there is no reason to doubt the credibility of his statements. The law does not require evidence of a hearing disability in service. Instead, there need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley, 5 Vet. App. at 159. Based on the foregoing, the evidence raises a reasonable doubt as to whether the Veteran's current right ear hearing loss was incurred in service. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Accordingly, that doubt will be resolved in the Veteran's favor, and service connection for right ear hearing loss is warranted. ORDER Service connection for right ear hearing loss is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs