Citation Nr: 1332220 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-25 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to March 1970, from May 1980 to September 1983, and from June 2004 to December 2005. He had additional service with the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the above claim. In September 2011, the Board remanded the matter to the Appeals Management Center (AMC) for the purpose of providing the Veteran with a VA examination. As discussed in that remand order, this claim is not a claim to reopen a previously denied claim for service connection, as characterized by the RO in an October 2008 rating decision, but a direct claim for service connection for bilateral hearing loss as the February 2006 rating decision was not final. In October 2012 and February 2013, the Board again remanded the matter for additional development (specifically, to schedule the Veteran for a hearing before a Veterans Law Judge at the RO). In May 2013, the Veteran and his wife testified at a hearing before the undersigned. A transcript of this hearing is of record. At the hearing, the Veteran submitted additional evidence (lay statements) with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2013). Therefore, the Board may properly consider such newly received evidence. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file includes the May 2013 hearing transcript. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's bilateral hearing loss disability is related to his military service. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to establish the Veteran's entitlement to service connection for bilateral hearing loss disability. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for an organic disease of the nervous system when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. 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). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Lay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77. See also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006) & Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the service connection claim on appeal. At April 2011 and May 2013 hearings, the Veteran testified that he had exposure to in-service acoustic trauma, to include from engines, weapons and an explosion. He described an incident when a road-side bomb exploded near him in Iraq, and he had to be medevac'd to a hospital in Baghdad. There, he was treated and underwent a hearing test. He also testified that he first noticed hearing impairment in 1983. This hearing impairment worsened until it became very noticeable in 2004 or 2005. The Veteran's wife testified that her husband's hearing was fine when they got married in 1969. However, she noticed more and more hearing problems each time he returned from a period of active duty (1970, 1983, 2005). Eventually, she had to constantly repeat herself in order for him to understand her. The Veteran's service personnel records note that his military occupational specialty was that of a mechanic and that he worked on various vehicles including tanks. In addition, he was qualified for various weapons, including rifles. Service treatment records from the Veteran's first period of active service from November 1969 to March 1970 are negative for complaints or findings of hearing loss. Following the Veteran's second period of active service from May 1980 to September 1983, an October 1984 periodic examination revealed that the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 - 15 LEFT 10 15 15 - 20 In March 2004, just prior to the Veteran's final period of active service from June 2004 to December 2005, examination revealed that the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 30 55 50 LEFT 15 20 50 90 60 The Veteran was noted to be using a hearing aid in his left ear. Following the Veteran's discharge from service in December 2005, a January 2006 VA examination report notes that on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 35 55 55 LEFT 30 30 65 80 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. No etiology opinion was provided. In March 2009 and December 2011 opinions, VA examiners reviewed the Veteran's claims file and opined that the Veteran's hearing loss disability existed prior to his final period of military service (from 2004 to 2005) and was not aggravated therein. The Veteran has also submitted letters from: PBM, who stated that he and the Veteran were both exposed to noise from tank gunnery exercises in service; WB and JW, who described an incident during training in 1980 when an explosive went off within feet of the Veteran, causing his ears to ring and feel "stopped up"; and RGP, who stated that the Veteran was always in a place of high intensity noises during his military career, to include working on tanks and being involved in an IED attack within 10 meters of his vehicle. The medical evidence confirms that the Veteran currently has bilateral hearing loss disability, as defined by VA regulation. Furthermore, the Veteran and his wife are competent to testify as to observable symptoms such as hearing difficulty. Indeed, this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno, supra. Given the statements from the Veteran and his wife, the Board finds the Veteran's assertions of hearing loss dating back to active service to be credible here. While the Veteran may have had additional noise exposure in between his various periods of active duty, the Board has no reason to doubt the credibility of the hearing testimony and lay statements regarding in-service noise exposure. The Veteran is currently experiencing hearing loss disability, as noted in the VA treatment records and examination report above. Thus, the Veteran's statements here establish continuity of symptomatology such as to enable a grant of service connection for bilateral hearing loss disability. Resolving the benefit of the doubt in the Veteran's favor, and without ascribing error to the action of the RO, the Board finds that the criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs