Citation Nr: 1335366	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-03 583	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Houston, Texas


THE ISSUE

Entitlement to service connection for hyperacousis.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel

INTRODUCTION

The Veteran served on active duty from January 1964 to January 1967.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the RO.  

In September 2012, during the course of the appeal, the Veteran had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision.  The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  


FINDING OF FACT

The Veteran's hyperacousis is the result of noise exposure sustained as a member of a pistol team in service.  


CONCLUSION OF LAW

Hyperacousis is the result of disease or injury incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to service connection for hyperacousis.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  In this case, the Board finds that VA has met that duty.

In October 2008, the VA received the Veteran's claim of entitlement to service connection for hyperacousis.  The VA then informed the Veteran of the evidence necessary to support his claim, including the evidence to be provided by him and notice of the evidence the VA would attempt to obtain.  The VA also informed him of the criteria for service connection and set forth the criteria, generally, for rating service-connected disabilities and for assigning effective dates, should service connection be granted.  Thereafter, the Veteran submitted the evidence necessary to support his claim.

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal.  Inasmuch as the claim is being allowed, any further discussion of the VA's duty to assist him in the development of his claim would be superfluous.  Accordingly, the Board will proceed to the merits of the appeal.

The Merits of the Appeal

During his hearing before the undersigned Veterans Law Judge, the Veteran testified that he has hyperacousis as a result of his participation on a pistol team in the service.  Therefore, he maintained that service connection was warranted.  After carefully considering the claim in light of the record and the applicable law, the Board agrees.  Accordingly, the appeal will be allowed.  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110.  Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992). 

A review of the record is negative for any complaints or clinical findings of hyperacousis in service.  Such a disorder was first clinically reported during treatment by K. P. C., M.D. in August 2008.  That was many years after service.  However, in October 2012, the Veteran's treating otolaryngologist, J. M., Jr., M.D. opined that it was at least as likely as not that the Veteran's hyperacousis was the result of noise exposure sustained as a member of a pistol team during active duty.  In view of the Veteran's testimony of continuing symptomatology shortly after service and Dr. M.'s opinion, the Board finds that the Veteran meets the criteria for service connection.  At the very least, there is an approximate balance of evidence both for and against the claim that his hyperacousis had its onset as a result of service.  Under such circumstances, all reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for hyperacousis is warranted, and the appeal is allowed.  


ORDER

Entitlement to service connection for hyperacousis is granted.  



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs