Citation Nr: 1328305	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  12-04 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to service connection for bilateral hearing loss


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1959 to 
February 1962.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2009 rating decision by a 
Department of Veterans Affairs (VA) Regional Office (RO).  A 
notice of disagreement was filed in February 2010, a 
statement of the case was issued in January 2012, and a 
substantive appeal was received in February 2012.

The Veteran's cotemporaneous service connection claim for 
tinnitus was granted by a January 2012 rating decision; that 
issue is no longer in appellate status.


FINDING OF FACT

The Veteran's current bilateral hearing loss is at least as 
likely as not causally related to his active service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred during service.  
38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Laws and Regulations

The issue before the Board involves a claim of entitlement 
to service connection.  Applicable law provides that service 
connection will be granted if it is shown that the veteran 
suffers from disability resulting from an injury suffered or 
disease contracted in line of duty, or for aggravation of a 
preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service.  
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  That an injury 
occurred in service alone is not enough; there must be 
chronic disability resulting from that injury.  If there is 
no showing of a resulting chronic condition during service, 
then a showing of continuity of symptomatology after service 
is required to support a finding of chronicity.  38 C.F.R. 
§ 3.303(b).  Additionally, for veterans who have served 90 
days or more of active service during a war period or after 
December 31, 1946, certain chronic disabilities, such as 
organic diseases of the nervous system, are presumed to have 
been incurred in service if manifest to a compensable degree 
within one year of discharge from service.  38 U.S.C.A. 
§§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Service 
connection may also 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).

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, 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 Board notes, at the outset, that the lack of any 
evidence that the veteran exhibited hearing loss during 
service is not fatal to his claim.  The laws and regulations 
do not require in service complaints of or treatment for 
hearing loss in order to establish service connection.  See 
Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992).  Instead, as 
noted by the United States Court of Veterans Appeals 
(Court):

[W]here the regulatory threshold 
requirements for hearing disability are 
not met until several years after 
separation from service, the record must 
include evidence of exposure to disease 
or injury in service that would 
adversely affect the auditory system and 
post- service test results meeting the 
criteria of 38 C.F.R. § 3.385....For 
example, if the record shows (a) 
acoustic trauma due to significant noise 
exposure in service and audiometric test 
results reflecting an upward shift in 
tested thresholds in service, though 
still not meeting the requirements for 
"disability" under 38 C.F.R. § 3.385, 
and (b) post-service audiometric testing 
produces findings meeting the 
requirements of 38 C.F.R. § 3.385, 
rating authorities must consider whether 
there is a medically sound basis to 
attribute the post-service findings to 
the injury in service, or whether they 
are more properly attributable to 
intercurrent causes.

Hensley v. Brown, 5 Vet.App. 155, 159 (1993) (quoting from a 
brief of the VA Secretary).

The Board further notes that it has reviewed all of the 
evidence in the Veteran's claims file and in "Virtual VA" 
(VA's electronic data storage system), with an emphasis on 
the evidence relevant to the matter on appeal.  Although the 
Board has an obligation to provide reasons and bases 
supporting its decision, there is no need to discuss, in 
detail, every piece of evidence of record.  Gonzales v. 
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must 
review the entire record, but does not have to discuss each 
piece of evidence).  Hence, the Board will summarize the 
relevant evidence as appropriate and the Board's analysis 
will focus specifically on what the evidence shows, or fails 
to show, as to the claim.

Analysis

To begin with, the evidence shows current hearing loss 
disability as defined by 38 C.F.R. § 3.385.  VA audiological 
examination in April 2010 showed auditory thresholds over 40 
decibels in several of the pertinent frequencies in both 
ears.  

There is also evidence of acoustic trauma during service in 
association with the Veteran's duties in field artillery.  
Moreover, the Board again notes that service connection for 
tinnitus has been established on the basis of noise 
exposure.  

The remaining question is whether there is a nexus or causal 
relationship between the current hearing loss disability and 
the noise exposure during service.  

On induction examination in November 1959, whispered voice 
testing was reported as 15/15 in both ears.  Service 
treatment records do not show any complaints or findings of 
hearing loss.  On separation examination in January 1962, 
audiological testing of the right ear (converted to ISO 
units) showed threshold levels of 25, 15, 15, and 5 decibels 
at the 500, 1000, 2000 and 4000 Hertz levels.  Testing of 
the left ear (converted to ISO units) showed threshold 
levels of 30, 15, 25, and 10 decibels at the 500, 1000, 2000 
and 4000 Hertz levels.  The 3000 Hertz level was not tested. 

It is unfortunate that only whispered voice testing was 
conducted at the November 1959 induction examination.  
However, although the audiological tests results on 
separation did not meet the criteria for hearing loss under 
38 C.F.R. § 3.385, the results do show borderline decibel 
levels at some frequencies.  

Here there is conflicting evidence that must be weighed.  
The Veteran's private audiologist, Michael Stewart, Ph.D, 
concluded that the Veteran's bilateral hearing loss was 
caused or aggravated by weapons fire exposure incurred 
during his service.  In doing so, Dr. Stewart considered the 
Veteran's reports of military noise exposure, post-service 
occupational use of hearing protection, and the audiometry 
examination results.  Significantly, Dr. Stewart commented 
that the type and audiometric configuration of the Veteran's 
hearing loss as shown on testing was typical of those seen 
in cases of excessive noise exposure.  

In contrast, the Veteran's April 2010 VA examiner, having 
considered the entire claims file, provided a negative 
etiological opinion, citing the Veteran's normal hearing at 
separation and delayed onset.  The examiner also opined that 
the Veteran's tinnitus was both: (1) at least as likely as 
not causally related to service; and (2) as likely as not a 
symptom associated with hearing loss.    

The Board finds that the evidence of record is at least in 
relative equipoise on the issue of nexus.  The VA opinion 
does not appear to take into consideration the significance 
of the borderline separation examination test results.  This 
diminishes the probative value of the VA opinion to some 
degree.  Moreover, the VA opinion does seem to associate 
tinnitus (which is already service-connected) with hearing 
loss due to noise exposure.  The evidence is not compelling, 
but after reviewing the totality of the evidence, the Board 
is unable to find that the preponderance of the evidence is 
against the claim.  There appears to be at least a balance 
of the positive evidence with the negative.  Accordingly, 
the Board finds that service connection is warranted for 
bilateral hearing loss.  

In closing, there is no need to undertake any review of 
compliance with the Veterans Claims Assistance Act of 2000 
(VCAA) and implementing regulations in this case since there 
is no detriment to the veteran as a result of any VCAA 
deficiency in view of the fact that the full benefit sought 
by the Veteran is being granted by this decision of the 
Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 
5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By 
letter dated in March 2009, the Veteran was furnished notice 
of the manner of assigning a disability evaluation and an 
effective date.  He will have the opportunity to initiate an 
appeal from these "downstream" issues if he disagrees with 
the determinations which will be made by the RO in giving 
effect to the Board's grant of service connection.


ORDER

Service connection for bilateral hearing loss is warranted.  
The appeal is granted. 



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs