Citation Nr: 1329221	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  10-24 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to service connection for bilateral hearing 
loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel



INTRODUCTION

The Veteran had active service from May 1960 to May 1963.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2010 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Muskogee, Oklahoma.

In April 2013, the Veteran testified at a hearing held at 
the RO before the undersigned Veterans Law Judge.  A 
transcript of the hearing has been associated with the 
record.  At that time, the Veteran submitted additional 
evidence with a waiver of initial agency of original 
jurisdiction (AOJ) consideration.  See 38 C.F.R. § 20.1304 
(2012).

In addition to the paper claims file, there are Virtual VA 
and Veterans Benefits Management System (VBMS) paperless 
files associated with the Veteran's case.  A review of the 
documents in the Virtual VA paperless claims file reveals 
the hearing transcript and VA treatment records that are 
relevant to the issue on appeal.  

Additionally, at the hearing, the Veteran raised the issue 
of whether new and material evidence had been submitted to 
reopen a claim for service connection for a left knee 
disorder.  However, that issue has not been adjudicated by 
the Agency of Original Jurisdiction (AOJ).  Therefore, the 
Board does not have jurisdiction over the matter, and it is 
referred to the AOJ for appropriate action.  



FINDING OF FACT

The Veteran has been shown to currently have bilateral 
hearing loss that is causally or etiologically related to 
his military service.  


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, 
bilateral hearing loss was incurred in active service. 38 
U.S.C.A. 38  U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 
2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 
(2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the fully favorable determination in this case, 
no further discussion of compliance with VA's duty to notify 
and assist is necessary.

Service connection may be established for disability 
resulting from personal injury suffered or disease 
contracted in line of duty in the active military, naval, or 
air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or 
disease occurred in service is not enough; there must be 
chronic disability resulting from that injury or disease.  
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).  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). 

Service connection for certain diseases, including organic 
diseases of the nervous system such as sensorineural hearing 
loss, may be also be established on a presumptive basis by 
showing that it manifested itself to a degree of 10 percent 
or more within one year from the date of separation from 
service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  Presumptive 
periods are not intended to limit service connection to 
diseases so diagnosed when the evidence warrants direct 
service connection.  The presumptive provisions of the 
statute and VA regulations implementing them are intended as 
liberalizations applicable when the evidence would not 
warrant service connection without their aid. 38 C.F.R. § 
3.303(d) (2012). 

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. 

The absence of in-service evidence of a hearing disability 
during service (i.e., one meeting the requirements of 38 
C.F.R. § 3.385) is not always fatal to a service connection 
claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  
Evidence of a current hearing loss disability and a 
medically sound basis for attributing that disability to 
service may serve as a basis for a grant of service 
connection for hearing loss where there is credible evidence 
of acoustic trauma due to significant noise exposure in 
service, post-service audiometric findings meeting the 
regulatory requirements for hearing loss disability for VA 
purposes, and a medically sound basis upon which to 
attribute the post-service findings to the injury in service 
(as opposed to intercurrent causes). See Hensley v. Brown, 5 
Vet. App. 155, 159 (1993). 

The Veteran asserts that he has current bilateral hearing 
loss as a result of military noise exposure during service.  
He reports having hearing problems for 30 years with 
temporary periods of complete deafness.  See hearing 
transcript, p. 5.

The Veteran's DD Form 214 indicates that he served as a 
light weapons infantryman in the Army.  During the hearing, 
he related that he was a gunner in service and that he fired 
rifles and machine guns without hearing protection.  See 
hearing transcript, p. 5.  He also stated that he 
participated in training maneuvers in close proximity to 
tanks firing blank ammunition rounds.  Id.  The Veteran is 
considered competent to relate a history of noise exposure 
during service. See 38 C.F.R. § 3.159(a)(2).

A review of the evidence of record, including an April 2002 
VA audiology consultation, May 2010 and May 2012 VA 
examination reports, and a September 2010 private audiology 
examination report, also demonstrates that the Veteran has a 
current bilateral hearing loss disability for VA purposes.

Having found a current disability, the Board must consider 
whether such is related to the in-service noise exposure.  
The claims folder contains both positive and negative 
medical opinions on this question. 

The May 2010 VA examiner opined that it was less than likely 
that the Veteran's hearing loss was related to his military 
service and stated that it was as likely as not that it was 
related to post-military occupations, health issues, or 
other causes.  The examiner noted that there were no 
notations of hearing loss in the service treatment records 
or within one year of separation from service and observed 
the first documentation of hearing loss was in an April 2002 
VA audiological evaluation report.  

Likewise, the May 2012 VA examiner opined that his hearing 
loss was not a result of military service because the 
Veteran did not demonstrate hearing loss during service and 
he had long-term industrial noise exposure.  

In contrast, a September 2010 private audiologist opined 
that it was at least as likely as not that the Veteran's 
hearing loss was related to his duties in the military.  The 
audiologist noted that the Veteran's duties as a gunner in 
the infantry exposed him to noise levels that cause acoustic 
trauma.  He reported, "Acoustic trauma is injury to the 
hearing mechanisms within the inner ear, caused by 
excessively loud noise.  Acoustic trauma is a common cause 
of sensory hearing loss.  Damage to the hearing mechanism 
within the inner ear results from explosions near the ear, 
gunshots, or long-term exposure to loud noises.  Hearing 
loss and tinnitus are the most common symptoms of acoustic 
trauma."

Thus, for the reasons described above, the Board concludes 
that there is a reasonable doubt as to whether the Veteran's 
current bilateral hearing loss is related to his period of 
service.  Under the benefit-of-the-doubt rule, 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).  Given the evidence in the record, such a 
conclusion cannot be made in this case. 

Thus, in resolving all reasonable doubt in the Veteran's 
favor, service connection for bilateral hearing loss is 
warranted.  38 C.F.R. § 3.102. 


ORDER

Subject to the provisions governing the award of monetary 
benefits, service connection for bilateral hearing loss is 
granted.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs