Citation Nr: 1331017 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-16 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran had active military service from March 1968 to March 1970, including service in Vietnam. The Veteran's service records reflect that he was awarded the Silver Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board also notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during active military service. 2. The Veteran experienced acoustic trauma in combat. 3. Resolving reasonable doubt in favor of the Veteran, bilateral hearing loss is etiologically related to his military service. 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. §§ 1101, 1110, 1112, 1113, 1154(b), 5100, 5102, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.326, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) of 2000 provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, and 5107; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). In this decision, the Board grants service connection for bilateral hearing loss. As this represents a complete grant of the benefit sought on appeal regarding this claim, no further discussion of VA's duties to notify and assist is necessary as any deficiency has been rendered moot. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty during active military service or, if pre-existing such service, was aggravated in-service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). The Board notes that sensorineural hearing loss is considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where a medical provider relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensorineural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, and 1113; 38 C.F.R. §§ 3.307 and 3.309. In order to establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the claimed in-service disease or injury. 38 C.F.R. § 3.303. The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA will find hearing loss 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 are less than 94 percent. 38 C.F.R. § 3.385. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide which evidence is probative to the claim and, in so doing, accept certain medical or lay opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he suffers from bilateral hearing loss as a result of acoustic trauma incurred during combat service. The Veteran maintains that he has been experiencing bilateral hearing loss since service. The Veteran asserted in his August 2010 VA Form 21-526 that he has been experiencing hearing loss since service. At his VA audiology examination in February 2011, the Veteran told the examiner that he was exposed to mortar and gunfire in combat throughout his service in Vietnam and that he did not wear hearing protection. In a July 2013 Statement in Support of Claim, the Veteran explained that he was exposed to noise during his active service from (1) M16s, (2) hand grenades, and (3) claymore mines. VA afforded the Veteran an audiology examination in February 2011. The VA audiologist diagnosed the Veteran with high frequency sensorineural hearing loss bilaterally. Audiological examination revealed pure tone thresholds, in decibels, as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 20 35 60 70 Left Ear 5 10 35 80 80 Speech recognition scores were 94 bilaterally. Therefore, the Veteran has a current hearing loss disability as defined by VA regulations because the auditory thresholds in the frequencies 3000 and 4000 Hertz were 40 decibels or greater. Turning to the issue of whether there is evidence of an injury, disease or event in service, as noted previously, there is no medical evidence of hearing loss in the Veteran's service treatment records. Nevertheless, as noted above, the Veteran contends he incurred acoustic trauma during combat. The Veteran's service records reflect that he was awarded a Silver Star Medal, demonstrating that he engaged in combat with the enemy. For injuries that are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection. Specifically, it provides that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board finds that the Veteran meets the in-service injury requirement based on his testimony regarding the noise exposure incurred in combat. Accordingly, the only remaining question is whether the current hearing loss disability began in service or is otherwise related to service. The February 2011 VA examiner opined that the Veteran's hearing loss was not caused by noise exposure sustained in combat. The rationale was that the Veteran demonstrated normal hearing in service without a significant threshold shift. The examiner relies solely on the absence of hearing loss in service (or at separation from service) as the reason for determining that the Veteran's current hearing loss is not related to his military service. However, the U.S. Court of Appeals for Veterans Claims has held that service connection for a current hearing disability is not precluded where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (finding that when audiometric test results do not meet their regulatory requirements for establishing a "disability" at the time of the veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). As the examiner's negative opinion as to the etiology of the Veteran's bilateral hearing loss appears to be based solely on the fact that he had "normal" hearing at separation, the Board finds the premise of this opinion appears to contradict the Court's holding in Hensley. Moreover, the VA examiner did not expressly consider the Veteran's contentions regarding experiencing symptoms of hearing loss since 1968. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Finally, the Board notes that although the Veteran did not have a "significant shift" at 4000 Hertz, as noted by the examiner, the examiner failed to explain the significance of the threshold shifts that were documented at 1000, 2000, and 3000 Hertz at the February 1970 discharge examination. Accordingly, the Board finds this opinion has low probative value. The Veteran contends that he has experienced symptoms of hearing loss since experiencing acoustic trauma during combat military service. In particular, on his August 2012 claim for compensation, the Veteran indicated that his current hearing loss disability began in 1968, and he has consistently described the types of acoustic trauma he experienced as a "medic" in combat. The Board finds that the Veteran is competent to attest to hearing loss symptoms. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno 6 Vet. App. at 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, the Veteran's allegations regarding acoustic trauma incurred during combat have been consistent with his other statements and the other evidence of record, such as receipt of the Silver Star Medal. Additionally, these statements support the current diagnosis of hearing loss. Id. Therefore, the Board finds that the most competent and credible evidence of record is the Veteran's lay testimony regarding experiencing acoustic trauma, and bilateral hearing loss, during service and continually since service. Accordingly, the Board finds that the evidence, both positive and negative, is at least in equipoise as to whether the Veteran's current bilateral hearing loss is due to his military service. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board finds that service connection is warranted for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs