Citation Nr: 1329530 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-28 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2013, the Veteran testified at a hearing which was chaired by the undersigned Acting Veterans Law Judge at the Board's offices in Washington D.C. A transcript of the hearing has been associated with the Veteran's VA claims folder. FINDING OF FACT The currently demonstrated bilateral hearing loss is shown as likely as not to be related to the Veteran's in-service exposure to excessive and harmful noise in connection with his duties as a gunner's mate. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his bilateral hearing loss is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of how VA complied with its duty to notify and assist the Veteran is necessary. The Veteran contends that he has bilateral hearing loss as a result of in-service acoustic trauma. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term chronic disease, whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered 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 threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT, 110-11 (Stephen A. Schroeder et al. eds., 1988)). When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. at 160. First, the Board finds the presence of an in-service event - acoustic trauma. The Veteran's service treatment records (STRs) are negative for any complaint, treatment, or diagnosis of hearing loss. At his September 1970 discharge examination, standard audiology testing was not performed; instead, a whisper voice test was administered, which showed 15/15 in each ear. But the Veteran's DD-214 documents that his military occupational specialty was a Gunner's Mate Trainee. During the May 2013 hearing, the Veteran testified that he was exposed to loud noises during service. Specifically, he stated that he would "shoot a lot of 50- caliber machine gun[s]." Thus, the evidence indicates that the Veteran's contentions regarding his in-service exposure to acoustic trauma are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a) (West 2002). An in- service event has therefore been demonstrated. Second, the Board finds that there is a current hearing loss disability. The May 2012 VA examination report contained such a diagnosis. See 38 C.F.R. § 3.385. Third, and most importantly, the issue that remains on appeal is whether there is a nexus between the diagnosed bilateral hearing loss and his in-service event. The Veteran was afforded a VA examination in May 2012. Following a clinical examination and a review of the claims file, the examiner determined that that the Veteran's hearing loss was not related to his active duty service. The examiner stated that "this was a very difficult case to evaluate" because the Veteran's discharge examination utilized a spoken voice test which would not reveal high frequency hearing loss if it had existed at that time. Nevertheless, the examiner stated that "owing to the audiometric configuration on the right, with this 'flat' loss we would expect some reflection on the spoken voice test" but that is not what was documented in the service treatment records. The VA examiner stated that the Veteran underwent a surgical reconstruction of the hearing mechanism of the middle ear (tympanoplasy) years ago and there was no evidence of treatment for the Veteran's ears during service. He then concluded that "if [one] eliminates the air-bone gap on the left, the audiometric configuration for cochlear function is similar to the right ear. Therefore, there is no compelling evidence that the current hearing loss is the result of acoustic trauma." The Board finds that the examiner did not provide adequate supporting rationale for the opinion. It is unclear what the VA examiner was referring to when discussing the Veteran's "audiometric configuration" or "flat loss." These terms are not explained in the examination report and the Board is unable to determine what facts the examiner was referencing. Additionally, the VA examiner did not explain how or why the Veteran's post-service ear surgery indicates that his current hearing loss is not related to his in- service noise exposure. It is also unclear why the similar "cochlear function" of the Veteran's ears indicates that his hearing loss was not related to his in-service noise exposure. Based on the above, the Board finds the May 2012 VA examination report is of little probative value. As noted, the rationale behind the examiner's opinion is unclear and poorly explained. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring VA medical examiners to provide a "reasoned medical explanation connecting" observations and conclusions). The Board finds, however, that the lay evidence of record supports a finding of service connection. The Veteran has submitted multiple lay statements from friends and family members who have observed his difficulty hearing since returning from active duty service. In a May 2013 statement, C.C. reported that in the early 1970s, directly after the Veteran was discharged, the Veteran was experiencing "difficulty hearing conversations especially if there was any background noise." In a statement received in May 2012, the Veteran's brother reported that the Veteran began speaking very loudly after he returned from active duty service. He stated that he later realized that his brother was talking loud because he was having problems hearing. The Veteran's former spouse, J.C., submitted a letter which stated that his hearing was awful during their marriage from 1983 to 1996. She indicated that the Veteran was unable to hear or understand conversations and the volume on the television had to be turned up in order for him to hear anything. During the May 2013 hearing, and in other lay statements of record, the Veteran testified that he was diagnosed with hearing loss in the mid-1970s but these records were no longer available as the doctor is no longer in practice. See Jandreau, 492 F.3d 1372 (discussing that a Veteran is competent to report a contemporaneous medical diagnosis). In addition, the Veteran claimed that he first noticed hearing loss after practicing in gunnery training while on active duty. The Veteran is competent to report when he first noticed difficulty hearing because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Moreover, the Veteran's testimony is credible as it is supported by the numerous lay statements which indicate that he was experiencing hearing loss shortly after he returned from active duty service. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Based on its review of the entire record, the Board finds that by resolving all reasonable doubt in the Veteran's favor, the preponderance of the evidence shows that the current bilateral hearing disorder is as likely as not due to the result of harmful noise exposure consistent with the Veteran's service. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs