Citation Nr: 1331475 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 12-27 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to May 1965 and from May 1968 to October 1969, with service in the Republic of Vietnam. The Veteran had an additional 39 years of service with the Army National Guard, until his retirement in 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). At an August 2013 Board hearing, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Bilateral hearing loss disability is related to acoustic trauma sustained in active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic diseases (including organic diseases of the nervous system - to include sensorineural hearing loss) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for organic diseases of the nervous system). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss disability is defined by regulation. For the purpose 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. The Veteran contends that he is entitled to service connection for bilateral hearing loss disability, as his hearing loss began while on active service. Specifically, the Veteran has reported that his hearing loss initially began while in basic training, during artillery school in 1965, when a howitzer went off right next to his head, after which he lost his hearing for several days. He reported that his hearing loss increased while on active service in May 1968 to October 1969, while in the Republic of Vietnam, as he was assigned to a howitzer battalion with the 138th Field Artillery division, which caused daily exposure to noise trauma. A review of the Veteran's DD Form 214 from his period of active service from May 1968 to October 1969 show that his military occupational specialty (MOS) was radio teletype operator and that he served in the Republic of Vietnam for 11 months and 16 days. At this time, the Board concedes the Veteran's exposure to severe noise trauma while in active service. In March 2012, the Veteran was afforded a VA audiological evaluation. At that time, the Veteran reported the above described noise exposure in service. There is no indication that the Veteran reported any significant noise exposure following his separation from active service; however, the Board notes that the record indicates that the Veteran worked as a mechanic, an auto shop foreman, and a carpenter for the National Guard, following his separation from active service. After audiological testing, the examiner diagnosed bilateral sensorineural hearing loss (SNHL). The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was related to his active service. The examiner based her opinion on the fact that following the Veteran's separation from active duty in October 1969, he was afforded an audiological evaluation in connection with his National Guard service in July 1973 that showed his hearing acuity was within normal limits, bilaterally. She went on to explain, that although there were no audiogram results prior to the Veteran's military service, as his July 1973 audiogram was within normal limits, it was likely that his hearing acuituy was within normal limits prior to his service in 1968. The Board notes that the March 2012 VA examiner's opinion is not based on an entire review of the claims file. Specifically, the Board notes that of record is an April 1968 audiogram conducted at the time the Veteran entered active duty, which is not discussed by the March 2012 VA examiner. The results of this audiogram, while not drastically different from the July 1973 audiogram, indicate that there was a slight shift in the Veteran's hearing between 1968 and 1973, especially in the high frequency range in his right ear. The Board finds this significant. Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). As the March 2012 VA opinion is not based on a review of the entire claims file, the Board has assigned it less probative weight. Additionally, the United States Court of Appeals for Veterans Claims (Court) held that, even though disabling hearing loss may not be demonstrated at separation, a Veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, the Veteran reported that he has experienced bilateral hearing loss disability since his basic training when he lost his hearing for several days, and that his hearing loss worsened during his service in the Republic of Vietnam. Further, the Board notes that the Veteran is competent to report when he first noticed difficulty hearing and that those symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. In sum, the Board concedes that the Veteran sustained severe noise trauma during his active service; while the record suggests that the Veteran may have been exposed to postservice occupational noise exposure, the Veteran has consistently reported that he has experienced difficulty hearing ever since his active service, and he is competent to make such reports; and there is some indication that the Veteran had a shift in his hearing acuity during active service. Therefore, the Board finds that the evidence in favor of the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs