Citation Nr: 1334824 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-13 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Daughter ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1944 to July 1946. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Acting Veterans Law Judge in July 2013; the hearing transcript has been associated with the file and has been reviewed. 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 total 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) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran's bilateral hearing loss is due to his active military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain chronic diseases, including organic diseases of the nervous system, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). M21-1MR III.iv.4.B.12.a. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Impaired hearing is considered a disability for VA purposes 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. A September 2009 private audiological examination and a December 2009 VA examination both found sensorineural hearing loss at a level considered to be a disability for VA purposes. Thus, the remaining question is whether the hearing loss is due to service. The Veteran contends he is entitled to service connection for hearing loss that resulted from his exposure to battle noise in World War II. He testified at his July 2013 Board hearing that he was a rifleman and was exposed to explosions of various types during three campaigns, including the Battle of the Bulge. He reported he had no hearing problems prior to entering service but noticed hearing troubles prior to his discharge from service that have worsened over the years since. The Veteran testified that after service he worked in the shipping department of a factory where he was not exposed to noise, nor was he exposed to any other excessive noise after service. The Veteran also submitted a letter signed by two people who reported they have known the Veteran since prior to his service and that his hearing appeared to have diminished upon his return from service. The National Personnel Records Center (NPRC) reported that the Veteran's service treatment records (STRs) are not available and presumed destroyed in the St. Louis fire in 1973. Where STRs have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide an explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). The Veteran's enlistment record and report of separation reflects that his military occupational specialty was a truck driver, he earned the combat infantry badge, and was qualified on the M-1 rifle. It further lists that he participated in three campaigns with nearly a year and half of foreign service. Having considered the circumstances of the Veteran's service the Board concedes noise exposure in service and finds the Veteran's description of his exposure credible. In December 2009 the Veteran was afforded a VA examination. The Veteran reported his history of hearing loss since service and that he had two stapedectomies done on his left ear in the early 1980s, the first of which improved his hearing for awhile and the second of which did not help. The examiner explained that stapedectomies are surgeries that repair the ossicles "usually due" to otosclerosis, which is "generally hereditary" and not caused by noise exposure. The examiner stated that without audiometric information from service he did not know when the Veteran's hearing problems began and could not state an opinion as to etiology without resorting to mere speculation. The Veteran underwent a private audiological examination in September 2009. The private audiologist recounted the Veteran's report of noise exposure in service in battle and concluded that the Veteran's hearing loss in his right ear "is in agreement with that which is seen with noise exposure, indicating that it is as likely as not that his hearing loss is a result of military service." With regard to the left ear, the private audiologist opined that it "too could be as likely as not a result of his military service as well as involvement of an underlying medical reason that existed in the past." The Board finds that both the VA examiner and the Veteran's private audiologist had an accurate understanding of the Veteran's history of hearing loss and treatment as he has described to the Board. The Board further finds the Veteran's description of his history of hearing loss that began in service and endured and worsened since that time to be competent and credible. Although the Veteran is not competent to diagnose hearing loss for VA purposes, he is competent to report subjective hearing difficulties as he observes them. The lay statements by the Veteran's friends further support his contention that he experienced hearing loss beginning in service. The Board finds the medical evidence is at least in equipoise; there is evidence both for and against the claim. The Veteran's private audiologist opined that the Veteran's hearing loss is due to service and the VA examiner suggesting that the Veteran may have a hereditary condition causing hearing loss in his left ear but stating that an etiology opinion would be mere speculation due to a lack of medical records. After affording the Veteran the benefit of the doubt in this case, the Board finds he is entitled to service connection for his hearing loss. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs