Citation Nr: 1332760	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  08-15 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Counsel


INTRODUCTION

The Veteran served on active duty from November 1963 to October 1965.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  During the appeal period, jurisdiction over the Veteran's claim was transferred to the RO in Phoenix, Arizona.

In December 2009, the Veteran testified before the undersigned at the RO.  A transcript of the hearing is associated with the claims file.


FINDING OF FACT

The Veteran has bilateral hearing loss that is related to his service.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, bilateral hearing loss was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).  However, in the decision below, the Board has granted the benefits sought on appeal in full.  Thus, further notice and development could not result in a more favorable result for the Veteran or be of assistance to this inquiry.  Hence, no further notice or assistance is required, as there is no harm or prejudice to the Veteran.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Law and Analysis

The Veteran seeks service connection for bilateral hearing loss.  Having carefully considered the claims in light of the record and the applicable law, the Board finds that the evidence is at an approximate balance, and the claim will be granted.

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  That an injury was incurred in service alone is not enough.  Instead, there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).

Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In certain cases, competent lay evidence may demonstrate the presence of any of these elements.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).

Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss.  For these conditions, service connection may be granted if the chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a).").  If, however, a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336. 

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.

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

The VA audiological examination report dated in June 2010 shows that the Veteran's hearing loss met the criteria to be considered a disability for VA purposes.  Thus, he has been shown to have a current disability.  The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus between the current disability and the in-service disease or injury.

The Veteran's service treatment records do not reflect any complaints, treatment, or diagnoses related to hearing loss.  Audiological evaluations were done at entry and separation and show some downward shift in hearing acuity during that time, although he did not demonstrate a hearing loss disability in service.  During his examinations, in written statements, and through testimony before the undersigned, the Veteran has described in-service noise exposure from guns fired during training exercises.  He stated that no hearing protection was provided.  His specialty during service was ballistic meteorologist crewman.  This specialty is also reflected on the Veteran's separation document (DD Form 214).

The Veteran is competent to describe the symptoms he has experienced and the noises exposure he had during service.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Furthermore, the Board finds the Veteran's testimony to be credible, as his reports of symptoms and noise exposure have been consistent throughout the record, and his Form DD 214 is consistent with the history he describes.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).

The final element is evidence of a nexus between the Veteran's current hearing loss and his noise exposure during service.  On the Veteran's behalf, VA obtained numerous VA medical opinions regarding his hearing loss.  These records are dated in May 2007, June 2010, August 2010, January 2011, May 2011, and January 2013.  While the June 2010 opinion was positive, that examiner did not review the claims file.  The remaining opinions weigh against the Veteran's claim.  However, none of those examiners discussed the threshold shift in the Veteran's hearing acuity between his entrance and separation examinations.

Consequently, in September 2013, the Board obtained a Veterans Health Administration opinion in order to ensure that there was adequate medical evidence to decide the claim.  That individual, who is an audiologist, specifically considered the audiological examinations conducted during service and opined that the threshold shift that was shown, along with other stated reasons, made it at least as likely as not that the Veteran's current hearing loss was related to his military service.  The audiologist also considered and discussed the Veteran's report of noise exposure and symptomatology.

The Board finds that this opinion is competent.  It is also consistent with the credible reports of the Veteran's noise exposure and symptomatology both during and after service.  She provided the only opinion that contained a complete rationale that discussed the threshold shift in the Veteran's hearing during service.  It is, therefore, more probative than all of the other VA examiners' statements.

Accordingly, as there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Board finds that this is a situation where the benefit of the doubt rule applies.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection for hearing loss is granted.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs