Citation Nr: 1329062	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  12-23 468	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel



INTRODUCTION

The Veteran served on active duty from October 1942 to January 1946.

This matter comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied, in pertinent part, entitlement to service connection for hearing loss, heart condition to include coronary artery disease, status post bypass grafts and hypertensive heart disease (hypertension), and major depressive disorder or other acquired psychiatric condition to include posttraumatic stress disorder (PTSD) and anxiety.  

In February 2010, the Veteran filed a notice of disagreement with regard to the RO's denial of service connection for PTSD, hearing loss, and hypertension.

In an August 2012 rating decision, the RO granted entitlement to service connection for PTSD, assigning a 50 percent disability rating, effective February 14, 2006.  The grant of service connection for PTSD constituted a full award of the benefit sought on appeal as to that issue.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  Neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period.  Thus, those issues are not currently in appellate status.  Id.

A statement of the case was issued in August 2012 pertaining to the hearing loss and hypertension issues.   In August 2012, the Veteran filed a substantive appeal only with regard to the issue of entitlement to service connection for hearing loss.  Thus, the hypertension issue is not in appellate status.

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).


FINDING OF FACT

Resolving all doubt in the Veteran's favor, bilateral hearing loss had its onset during the Veteran's active service.  


CONCLUSION OF LAW

Bilateral hearing loss was incurred during active service.  38 U.S.C.A. §§ 1110, 1154(b), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The Veteran is seeking service connection for bilateral hearing loss.  The Board concludes that the VCAA does not preclude the Board from adjudicating the Veteran's claim.  This is so because the Board is taking action favorable to the Veteran by granting the benefit sought.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Any notice deficiency, per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), constitutes harmless error (see Bernard v. Brown, 4 Vet. App. 384, 394 (1993)), as section 5103(a) notice provisions have been satisfied, and if the Veteran so chooses, he will have an opportunity to initiate the appellate process again should he disagree with the disability rating or effective date assigned to the award.  Then, more detailed obligations arise, the requirements of which are set forth in sections 7105(c) and 5103A.  Dingess, 19 Vet. App. at 489.  

Criteria & Analysis

Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease 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. § 1110; 38 C.F.R. § 3.303.  

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).

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.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.  

Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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.  For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The lack of any evidence that a veteran exhibited hearing loss during service is not fatal to the 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 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).

In adjudicating this claim, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005).

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge.  See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).

Pursuant to 38 U.S.C.A. § 1154(b), under such regulatory provision, if the record demonstrates that the Veteran engaged in combat with enemy forces, then by statute VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran.  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  See also 38 C.F.R. § 3.304(d).

The Veteran's service personnel records indicate that he served in the United States Navy during World War II, served as an Air Bomber and Combat Air Crewman, and he served in a Patrol Bombing Squadron.  He received three combat stars on Aircrew insignia, the Philippine Liberation ribbon with one bronze star, American Theatre of Operations Ribbon, and World War II Victory Medal.  His combat service and Military Occupational Specialties (MOS) are consistent with acoustic trauma and noise exposure is conceded.  38 U.S.C.A. § 1154(a),(b).

A January 1946 Report of Physical Examination conducted for separation purposes reflects whispered voice testing was 15/15 in both ears and a 'coin click' was 20/20 in both ears, thus normal.  Although these were the customary tests performed during that period, unfortunately they are not scientifically accurate and no audiometric tests were conducted in connection with this examination.

In May 2009, the Veteran underwent a VA examination.  He reported difficulty hearing in noise for at least the past ten years.  He did not recall having any hearing difficulties when he separated from the military in 1946.  He indicated that he was exposed to loud sounds while serving as an air crewman in the Navy.  He reported noise exposure from flying in patrol bombers and from gunfire.  He reported he flew in 103 combat missions.  He reported occupational noise exposure from working as a welder and truck mechanic for 15 years and from working as an offset printer at a printing company for 10 years.  Recreational noise exposure included occasional hunting and use of power tools.  On audiometric testing, pure tone threshold were as follows:


HERTZ

500
1000
2000
3000
4000
RIGHT
15
5
25
75
65
LEFT
15
10
25
55
60

The examiner diagnosed hearing within normal limits through 2000 Hertz sloping to a severe high frequency sensorineural hearing loss in both ears.  The examiner stated that given the Veteran's report that his hearing loss began approximately ten years ago and given his history of occupational noise exposure, it was less likely as not that the current hearing loss was due to a specific illness, injury, or event which occurred during his military service.  

As detailed above, the Veteran reported hearing loss for at least the past 10 years but this does not preclude the possibility that he suffered acoustic trauma in service and hearing loss due to service- given the unscientific nature of the testing conducted on separation, it is not possible to determine if some shift in auditory acuity, even if not noticeable to the Veteran, occurred.  In his substantive appeal, he stated that during his 110 combat seaplane flights, he sat between 2500 horsepower engines in a plexiglass nose of the plane and fired a 50 caliber machine gun.  In light of the Veteran's combat service and his credible statements pertaining to his in-service acoustic exposure, resolving all doubt in the Veteran's favor, the Board finds the evidence is in equipoise with respect to whether his bilateral hearing loss is related to his combat service.  



ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs