Citation Nr: 1336795 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-01 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1968 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. FINDING OF FACT The Veteran's bilateral hearing loss disability is related to his active service. CONCLUSION OF LAW A bilateral hearing loss disability was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran on the issue in appellate status and a decision at this point poses no risk of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). Analysis The Veteran essentially contends that he has a hearing loss disability as a result of his military service, and that its onset is related to in-service acoustic trauma. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 166 (Fed. Cir. 2004). With respect to current disability, service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (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. See 38 C.F.R. § 3.385 (2013). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim if the disability is one that is listed at 38 C.F.R. § 3.309(a) (such as an organic disease of the central nervous system). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Service connection for sensorineural hearing loss may be established based on a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013); see also VA Under Secretary for Health letter dated October 4, 1995 (it is appropriate for VA to consider sensorineural hearing loss as an organic disease of the nervous system and, therefore, a presumptive disability). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In connection with his claim, the Veteran was afforded VA examinations in January 2010 and July 2010. While these examinations were noted by the examining audiologists to be inadequate for rating purposes, the report of a May 2010 VA private examination report that includes diagnoses of mixed hearing loss in the right ear and moderate to severe mixed loss in the left ear includes findings consistent with a hearing loss disability under 38 C.F.R. § 3.385. Thus, Shedden element (1), medical evidence of a current disability, is met. With respect to Shedden element (2), medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the Board will separately discuss disease and injury. With respect to disease, the service treatment records (STRs) do not indicate any treatment in-service for hearing loss, and the Veteran's separation audiogram was within normal limits. Additionally, there is no evidence of hearing loss during service or within the one year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309(a) (2013). Therefore, Shedden element (2) is not met with respect to disease. As to in-service injury, the Veteran served as a Munitions Maintenance Specialist in service in the Air Force, as indicated on his Form DD 214. On his February 2009 Veteran's Application for Compensation And/Or Pension, he stated that he was exposed to very loud noise. He had stated to a private audiologist in May 2010 that hearing protection had not been provided in service. The Board notes that the Veteran is competent to give evidence about what he experienced, and exposure to noise is subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board finds that the Veteran was exposed to noise during service. Therefore, Shedden element (2) is satisfied. With respect to crucial Shedden element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current bilateral hearing loss and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran submitted a private audiology report dated in May 2010. The audiologist concluded that the Veteran's bilateral hearing loss is more likely than not related to his military noise exposure. She noted that, post-service, the Veteran worked for the St. Louis Street Department for approximately 17 years and wore hearing protection. Based on the evidence of record cited herein, the Board concludes that the weight of evidence demonstrates that bilateral hearing loss disability is related to service. Notably, there is no evidence contrary to the Veteran's private audiologist's findings, as the VA medical examiners were unable to report valid test results, and therefore unable to provide an opinion as to nexus. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board affords considerable weight to the private audiologist report. A thorough rationale as to the etiology of hearing loss was provided. The private audiologist's opinion is consistent with the Veteran's assertions as to noise exposure during service and the evidence of record reflecting his in-service duties. In contrast, the VA examination reports were inconclusive. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case as the law requires, find that Shedden element (3) has been met, and grant service connection for bilateral hearing loss disability. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs