Citation Nr: 1331315 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-36 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hearing loss of the right ear. 2. Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from July 1943 to June 1946 and from September 1950 to July 1952. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. At the time of his death in December 2009, the Veteran had a pending appeal for the issues set forth on the title page. In January 2010, the Board dismissed the Veteran's appeal because, as a matter of law, appellants' claims do not survive their deaths. See, e.g., Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996). At that time, the Board referred the surviving spouse's December 2009 request to be substituted as the appellant to the RO for appropriate action. See 38 U.S.C.A. § 5121A (West Supp. 2012). The RO granted the appellant's request to be substituted and informed her of the decision by letter dated in September 2012. Accordingly, the appellant has been substituted as the claimant for the purposes of these claims on appeal. FINDING OF FACT The evidence is in equipoise as to whether the Veteran had right and left ear hearing loss etiologically related to service. CONCLUSIONS OF LAW 1. Resolving all doubt in the appellant's favor, the criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Resolving all doubt in the appellant's favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In regard to element (1), current disability, VA treatment records dated August 2005 reflect that the Veteran has hearing loss in both ears for VA purposes. See 38 C.F.R. § 3.385. In regard to element (2), in-service incurrence, the Board notes that the Veteran served aboard the USS Mississippi and he reported exposure to the noise of ship's guns. This account is corroborated by statements from fellow service members, I.J. and M.S., dated February 2006. The Veteran and his comrades are competent to report noise exposure in service, and their accounts are credible as they are consistent with the circumstances of the Veteran's service aboard his ship. This element is satisfied. The evidence relating to element (3), causal relationship, consists of an August 2005 treatment record, February 2013 and May 2013 VA opinions, and a July 2013 Veterans Health Administration (VHA) opinion. However, the VA opinions are not adequate because, contrary to both the evidence and the examination request instructions, the examiner did not acknowledge the Veteran's exposure to loud noise in service. Similarly, the VHA opinion stated that there was no hearing loss using gross measures for many decades following active service, when in fact an August 1952 examination conducted one month after the Veteran's discharge noted whispered voice tests of only 10/15 bilaterally. For these reasons, the probative value of the VA and VHA opinions is limited. The August 2005 treatment record included a statement from the treating audiologist that the Veteran's bilateral sensorineural hearing loss was consistent with cochlear involvement exacerbated by aging, with military noise exposure likely being a contributing factor. Although this opinion is not supported by any further explanation, it is probative evidence in favor of the appellant's claim. When weighed against the VA and VHA opinions, the Board finds the evidence regarding whether hearing loss was attributable to noise exposure in service to be in equipoise. Therefore, resolving all doubts in the appellant's favor, all three elements have been satisfied, and the Board finds that service connection for left and right ear hearing loss is warranted. ORDER Service connection for right ear hearing loss is granted. Service connection for left ear hearing loss is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs