Citation Nr: 1336103 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-28 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from January 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the case for further development in November 2011. That development was completed, and the case has since been returned to the Board for appellate review. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claim on appeal. FINDING OF FACT The Veteran has been shown to have left ear hearing loss during the appeal period that is related to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, left ear hearing loss was incurred in active service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, in light of the fully favorable decision below, no harm or prejudice to the appellant has resulted regardless of whether the notice and assistance requirements have been met in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also 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). Service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2013). 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). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for left ear hearing loss. The Veteran filed a claim for service connection for bilateral hearing loss in November 2006, and the medical evidence of record shows that the Veteran has had left ear hearing as defined by VA regulation during the course of this appeal. See 38 C.F.R. § 3.385. In this regard, the Veteran exhibited a speech recognition score of 92 percent for his left ear at his July 2007 VA audiological examination. In April 2008, the Veteran's private audiologist also conducted a hearing examination that showed a puretone threshold of 40 decibels at 4000 Hertz with a speech recognition score of 92 percent for the Veteran's left ear. The Board observes that the Veteran's audiologist only provided the puretone threshold results in graph form. However, the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear. Kelly V. Brown 7, Vet. App. 471 (1995); Savage v. Shinseki, 24 Vet. App. 259 (2011). The Board does acknowledge that the Veteran was not shown to have left ear hearing loss during his most recent VA examination in December 2011. However, the United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). Thus, the July 2007 VA examination report and the April 2008 private audiological examination report are sufficient to establish that the Veteran has had a current disability during the pendency of the appeal. Moreover, the Veteran has contended that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his current hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). Indeed, VA has already granted the Veteran service connection for his right ear hearing loss and tinnitus based on his claimed in-service acoustic trauma. Thus, the remaining question pertaining to service connection is whether the Veteran's left hearing loss is related to his military noise exposure. The July 2007 VA examiner provided a negative etiological opinion; however, the December 2011 VA examiner stated that the Veteran's hearing loss was at least as likely as not incurred in or caused by his claimed in-service injury, event, or illness. To support this positive opinion, the examiner explained that significant threshold shifts were noted at several frequencies in both ears when comparing the Veteran's September 1968 entrance hearing examination to his March 1971 separation hearing examination. In light of the foregoing, the Board finds that the evidence is in equipoise regarding whether the Veteran's current left ear hearing loss was incurred in active military service. Under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. As there is such a balance of evidence in this case, the Board affords the Veteran the benefit of the doubt. Accordingly, service connection for left ear hearing loss is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for left ear hearing loss is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs