Citation Nr: 1336319 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-38 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran had honorable active service for VA purposes from August 1979 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's right ear hearing loss is etiologically related to his honorable active duty service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for right ear hearing loss, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran asserts that his current right ear hearing loss is related to in-service noise exposure. Specifically, the Veteran reports that he served as a gas turbine mechanic and served on aircraft carriers. He states that he worked on A-7s, jet aircraft, and the engines thereof, as well as gas turbines, and that he was on the flight deck approximately 14 to 16 hours per day, seven days per week. The Veteran asserts that since his separation from service most of his jobs have involved "office-type" work, and he denies any recreational noise exposure. A November 2011 VA examination reflects a diagnosis of sensorineural hearing loss in the frequency range of 500 to 4000 Hertz in the right ear that meets the requirements of a disability for VA purposes under 38 C.F.R. § 3.385. As a result, the Board finds the Veteran has established a current disability for purposes of service connection. Service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of right ear hearing loss. However, in this case the Board finds the Veteran's descriptions of his in-service noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Veteran's DD-214 shows that his military occupation specialty during his period of honorable active duty service was aviation support mechanic, which corroborates his reports of his in-service duties and noise exposure. As a result, the Board finds the evidence establishes an in-service event for purposes of service connection. The remaining element necessary to establish service connection is a nexus between the current disability and the in-service event. In October 2011, the Board found the two medical opinions of record inadequate for purposes of determining service connection and remanded the Veteran's claim for an additional VA examination and opinion. Accordingly, the Veteran underwent VA examination in November 2011. After audiological examination and a review of the claims file, to include the Veteran's service treatment records and lay statements, the VA examiner opined that the Veteran's hearing loss was at least as likely as not caused by or a result of an event in military service. The VA examiner specifically noted the Veteran's reports of working on gas turbine engines and his exposure to noise on the flight deck around aircraft. In addition, the VA examiner found it relevant that the Veteran had done mostly office-type work as a civilian and had denied any recreational noise exposure. The VA examiner also cited the enlistment and separation examinations from the Veteran's period of honorable active duty service, as well as the enlistment examination performed in connection with his second period of service in the United States Army. In this respect, the VA examiner stated, "given there was a second period of military service, with no separation audiogram, it is at least as likely as not that the Veteran's hearing loss/tinnitus are a result of military noise exposure." Upon review, the Board finds the VA examiner's comment regarding the significance of the Veteran's second period of service lessens the probative value of the opinion, as this second period has been deemed dishonorable for VA compensation purposes. However, as it appears the VA examiner primarily based the opinion on the Veteran's reported duties during his period of honorable active duty service in the United States Navy, the Board finds the opinion carries some probative value with respect to whether right ear hearing loss is etiologically related to a period of honorable active duty service. Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether right ear hearing loss was incurred during a period of honorable active duty service. As such, service connection for right ear hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ear hearing loss is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs