Citation Nr: 1336224 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-29 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from December 1963 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran was scheduled for a hearing before the Board in August 2011. However, after being notified of the scheduled hearing, the Veteran withdrew his hearing request in a letter submitted in August 2011. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Board has reviewed the Veteran's physical claims files, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran currently has a bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran was exposed to acoustic trauma during service. 3. The Veteran experienced "chronic" symptoms of bilateral hearing loss in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for presumptive service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim for service connection for bilateral hearing loss has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted above, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Legal Criteria and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Bilateral sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for hearing loss. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the burden falls on the government to rebut the presumption of soundness. The correct standard requires that VA show by clear and unmistakable evidence (1) the veteran's disability existed prior to service and (2) the pre-existing disability was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1111. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. The Veteran contends that he currently suffers from bilateral hearing loss due to the responsibilities and noise exposure he encountered as a combat engineer in service. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability for VA purposes. In February 2008, the Veteran underwent a VA audiological examination. The audiogram included in the examination report shows that puretone thresholds, in decibels (dB), were as follows: HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 10 10 15 55 55 LEFT 10 15 70 70 70 These results establish a current bilateral hearing loss disability (audiometric test scores of 40 dB or greater in both ears) that meets the standards of 38 C.F.R. § 3.385. In addition, the audiologist diagnosed bilateral sensorineural hearing loss. The Board finds that the Veteran was exposed to acoustic trauma in service. The Veteran has consistently stated, and his DD Form 214 reflects, that he served as a combat engineer while serving with the Army. See September 2007 VA Form 21-4138; August 2009 VA Form 9. Veterans Benefits Administration (VBA) Fast Letter 10-35 lists combat engineer as a military occupational specialty (MOS) entailing a high probability of hazardous noise exposure. See VBA Fast Letter 10-35 (September 2, 2010) (modifying the development process in claims for hearing loss and/or tinnitus). The Board finds that the Veteran's competent lay accounts of having been exposed to explosions and gunfire are consistent with the circumstances, conditions, and hardships of his service and are, therefore, credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the Board finds in-service acoustic trauma. The Board also finds that the Veteran experienced "chronic" symptoms of bilateral hearing loss in service. Although the Veteran was not specifically diagnosed with hearing loss in either ear in active service, such was not required. Hensley, 5 Vet. App. at 159. The evidence of record demonstrates acoustic trauma in service and some worsening of hearing ability in both ears during service. Specifically, a comparison of the Veteran's December 1963 service enlistment examination and September 1966 service separation examination reveals higher puretone thresholds for specific frequencies in both ears at service separation. Service department audiometric readings prior to October 1, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. Pure tone thresholds, in decibels, were as follows: Dec. 1963 HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 5 0 5 5 0 LEFT 5 5 10 5 10 Sept. 1966 HERTZ (Hz) 500 1000 2000 3000 4000 RIGHT 15 5 10 - 5 LEFT 15 5 10 - 5 These scores indicate increased auditory thresholds at the frequencies of 500, 1000, 2000 and 4000 Hz in the right ear and at 500 Hz in the left ear. This threshold shift serves as evidence of worsened hearing in service and is analogous to "chronic" hearing loss in both ears during service under 38 C.F.R. § 3.303(b). Unless current hearing loss can be clearly attributed to intercurrent causes, this threshold shift can serve as the basis for a service connection grant (presumptive service connection) based on "chronic" symptoms in service. 38 C.F.R. § 3.303(b). The February 2008 VA audiological examination report lists several possible intercurrent factors including employment in a lumber mill for 14 years, heavy construction surveying work for seven years, and recreational hunting without hearing protection. The VA examiner concluded that the Veteran's hearing loss was less likely than not due to active duty noise exposure; however, the Veteran's statements regarding continuous exposure to explosions and gunfire as a combat engineer - which was acknowledged by the VA examiner - presents competing evidence that can explain the threshold shift in hearing abilities in both ears that occurred in service. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that, on the basis of acoustic trauma in service and chronic symptoms of hearing loss that were later diagnosed as such for VA purposes, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs