Citation Nr: 1336952	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-25 053	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel


INTRODUCTION

The Veteran served on active duty from January 1960 to August 1963.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In August 2012, the Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) during a travel board hearing at the local RO.  A transcript of the hearing has been associated with the claims file.  During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration.  


FINDING OF FACT

The Veteran's current bilateral hearing loss disability is attributable to acoustic noise trauma during his active military service.  


CONCLUSION OF LAW

Bilateral hearing loss was incurred in service.  38 U.S.C.A. §§ 1101, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2013).  In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the service connection claim for bilateral hearing loss given the fully favorable nature of the Board's decision. 
.  

Pertinent Legal Criteria and Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).  

Audiometric testing conducted during a VA compensation examination in June 2008 reflects that the Veteran has a bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  The first element of a current disability has therefore been satisfied.  

Moreover, the Veteran has competently and credibly reported exposure to loud noise during service while on the flight line.  Service connection is currently in effect for tinnitus based on acoustic trauma while serving on an aircraft carrier.  Thus, the second element of an in-service incurrence is satisfied. 

With regard to etiology, the Board has considered the June 2008 VA examiner's opinion that the Veteran's hearing loss is less likely related to service.   However, that opinion was partly based on an incorrect finding that the Veteran had normal hearing at service separation because a review of the Veteran's audiometric findings on his separation examination report shows that he did, in fact, have some hearing loss at that time.  The Board notes further that the Veteran submitted an internet article from the National Institute of Health which indicates that symptoms of hearing loss from acoustic trauma may slowly get worse over time.  
The June 2008 VA opinion also did not account for the Veteran's competent, credible and probative accounts of declined hearing loss since separation.  See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion).   
For the above-stated reasons, the Board finds that the June 2008 VA opinion is not determinative on the question of causal nexus between the current hearing loss and service. 

Aside from the medical opinion, the only remaining evidence of a nexus is the Veteran's competent and credible report of hearing loss in service with recurrent symptoms thereafter.  Thus, the Board finds that the third element of a nexus has been satisfied.

As all three elements have been satisfied, the Board finds that service connection for bilateral hearing loss is warranted.  


ORDER

Entitlement to service connection for bilateral hearing loss is granted.  



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs