Citation Nr: 1330167 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-12 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Hartford, Connecticut, which denied the Veteran's claim. In July 2010, the Veteran testified before a Decision Review Officer at the Hartford RO. A transcript of the hearing has been associated with the Veteran's claims folder. FINDING OF FACT The evidence of record, to include competent lay evidence, is at least in equipoise as to whether the Veteran's current bilateral hearing loss began during active duty service or is related to an incident of service. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Moreover, in light of the favorable decision for the Veteran with respect to his claim, any error in the content or timing of VCAA notice or assistance, if shown, would be moot. II. Analysis Under 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the United States Court of Appeals for the Veterans Claims (Court) has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for certain chronic diseases, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the disease 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) (2012). The Veteran contends that his current bilateral hearing loss is the result of acoustic trauma without hearing protection during service in the Republic of Vietnam. Specifically, he states that as part of his military occupational specialty ("MOS") as a machine gunner, he was exposed to heavy artillery fire. He also states that an enemy shell exploded near him, resulting in shrapnel wounds in his neck (for which he is currently service-connected), and causing his bilateral hearing loss. Title 38 U.S.C.A. § 1154(b) provides that, in the case of any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, the Secretary of VA shall accept as sufficient proof of service connection for any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incidence 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. The reasons for granting or denying service connection in such cases shall be recorded in full. The provisions of 38 U.S.C.A. § 1154(b) do not allow a combat veteran to establish service connection with lay testimony alone. Rather, the statute relaxes the evidentiary requirements for proving certain events alleged to have occurred during service when there is no official record. It cannot be used to etiologically link the alleged service event to a current disability. Gregory v. Brown, 8 Vet. App. 563, 567 (1996); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). 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. Review of the Veteran's service treatment records reveals no complaints of, treatment for, or a diagnosis of a hearing loss disorder. During his March 1970 separation audiometry examination, puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 -- 0 RIGHT 0 0 0 -- 0 Based on these results, the criteria for hearing loss disability as described under 38 C.F.R. § 3.385 were not met for either ear. However, the Court has held that the absence of in-service evidence of a hearing loss disability is not always fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, the Board notes that the Veteran's DD 214 reveals that his MOS was as a light weapons infantryman, he had one year of overseas service, and was awarded the Purple Heart, Combat Infantryman Badge and Bronze Star Medal with "V" device. In January 2010, the Veteran was afforded a VA compensation and pension audiometry examination, at which time, he again reported that his hearing loss began while serving in Vietnam as a machine gunner. He also reported that, following service, he had no noise exposure, including in his work as an electrician. Upon examination, audiological puretone thresholds were measured as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 10 25 45 LEFT 20 20 10 40 75 On his speech recognition ability test, the Veteran scored 100 percent bilaterally. The results revealed that the criteria for hearing loss for VA purposes were met for both the right and left ears. The examiner diagnosed right ear hearing within normal limits through 3000 Hz followed by a stable moderate to severe sensorineural hearing loss thereafter. For the left ear, he diagnosed hearing within normal limits through 2000 Hz followed by a stable mild to severe sensorineural hearing loss thereafter. Although the examiner also diagnosed the Veteran with tinnitus, and opined that his tinnitus was at least as likely as not related to military noise exposure based on his subjective complaints of tinnitus in service, he opined that the Veteran's bilateral hearing loss was not likely related to military noise exposure. In this regard, he merely explained that the Veteran's hearing was noted to be within normal limits at the time of his discharge from service. Although the Board acknowledges the negative nexus opinion of the VA examiner, the Board is not bound to accept any opinion from a VA examiner, private physician, or other source concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). In addition, the Board also recognizes that where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Moreover, with regard to granting service connection for bilateral hearing loss on a direct basis, the Board notes that whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the examiner concluded that the Veteran's bilateral hearing loss was not related to acoustic trauma in service simply because there was no evidence of a hearing loss at separation. However, as discussed above, VA laws and regulations do not require in-service complaints of, or treatment for hearing loss in order to establish service connection. Ledford v. Derwinski, supra. Instead, the Court has held that where there is no evidence of the veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In this regard, the Court has held that a veteran is competent to report symptoms of hearing loss as a disability because symptoms of hearing loss are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Federal Circuit has held that medical evidence is not categorically required when the determinative issue involves either a medical etiology or diagnosis, but rather may, depending on the facts of the case, be established by competent lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Davidson reaffirmed the Federal Circuit's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), that VA must consider the competency of lay evidence and cannot reject outright such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. Significantly, the fact that the Veteran has been diagnosed as having bilateral hearing loss and has been awarded service connection for tinnitus adds to the credibility of his assertion that his bilateral hearing loss is related to service. Moreover, the Board finds that hearing loss is the type of disability that the Veteran is competent to describe. See Barr v Nicholson, supra; see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Furthermore, review of the record indicates that there is no reason to doubt the Veteran's credibility as to his reports. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is warranted. While the Veteran's separation examination is negative of any complaints of, treatment for, or diagnosis of hearing loss, he has submitted statements that he first noticed this condition during service and that it has continued since that time. While the Veteran is not competent to provide an opinion as to a diagnosis of a hearing loss disability as defined by 38 C.F.R. § 3.385, his statement as to the presence of some degree of hearing loss is evidence in support of the claim. Secondly, with regard to the Veteran's MOS as a light weapons infantryman, the Board observes that, according to VA Fast Letter 10-35 (September 2, 2010), which provides a "Duty MOS Noise Exposure Listing," the position of infantryman has a "highly probable" probability of exposure to hazardous noise. Also, as noted, the Veteran is in receipt of several combat related medals and has established service connection for shrapnel wounds of the neck due to the Veteran's participation in combat in Vietnam. Accordingly, the record contains sufficient evidence to find that the Veteran incurred acoustic trauma during service and first noticed some degree of hearing loss while on active duty, which has continued over the many years since service. There is also recent medical evidence confirming that the Veteran has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The question remains whether there is competent evidence of a nexus between this current condition and service, to include his exposure to acoustic trauma. The Board is cognizant of the decades that elapsed before a hearing loss disability was first demonstrated clinically. However, as explained above, the Veteran currently has a bilateral hearing loss and tinnitus and, as he was assigned to an artillery unit, he sustained acoustic trauma during service. He has also provided a history of hearing loss since service that stands essentially uncontradicted in the record. While the VA examiner's opinion negates a nexus, the examiner did note the Veteran's in-service noise exposure. And, notably, the examiner did not comment on or discuss the Veteran's competent and credible report of continuity of symptoms since service, which makes the VA examiner's assessment without any significant probative value when adjudicating the question of service connection. See Walker, supra. Accordingly, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding whether the Veteran's current bilateral hearing loss is the result of acoustic trauma in service. Consequently, the benefit-of-the-doubt rule applies, and service connection for bilateral hearing loss is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs