Citation Nr: 1330814	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  12-17 979	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for hearing loss.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

C. Ozger-Pascu, Associate Counsel



INTRODUCTION

The Veteran had active military service from June 1968 to January 1970, including service in the Republic of Vietnam.  The Veteran received the Combat Infantryman Badge (CIB) and the Bronze Star with the V device, for his heroism.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

The Board also notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the appellant's claims.  A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issues on appeal.

The appellant requested a hearing before a Veterans Law Judge in his July 2012 substantive appeal (VA Form 9).  Prior to his hearing date, however, the Veteran canceled his Board hearing request in a July 2012 communication.  Therefore, the Board notes the appellant's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2013).


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, bilateral hearing loss is etiologically related to his combat service in Vietnam.


CONCLUSION OF LAW

Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1155(b), 5107(b), 7104(a) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board grants service connection for hearing loss, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id.  (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

The Veteran served in combat and was likely exposed to acoustic trauma while serving in Vietnam, given that such exposure is consistent with the circumstances, conditions and hardships of that service.  38 U.S.C.A. § 1154(b).  As such, VA must presume the occurrence of the in-service injury.  In addition, the medical evidence shows that the Veteran has been diagnosed as having hearing loss and he reports the onset of the condition during combat service in Vietnam.  Further, the Board finds that he is both competent to report diminished hearing during and since serving in combat in Vietnam and that his account of having hearing loss since that time is credible.  Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his hearing loss became manifest during his combat service.  See Reeves.  In light of his in-service, combat-related acoustic trauma, the credible history of hearing loss in and since service, and the diagnosis of hearing loss, the Board finds that service connection for hearing loss is warranted because the disability had its onset in service.  


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs