Citation Nr: 1337155 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-03 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to October 1973, with additional service in the Army National Guard between August 1979 and January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefit sought. In April 2012 the Veteran testified before a Veterans Law Judge other than the undersigned at a Travel Board hearing at the RO. A transcript of the hearing is in the Veteran's file. That Veterans Law Judge is no longer with the Board. In August 2013 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO. FINDING OF FACT The Veteran has bilateral hearing loss for VA compensation purposes that is related to acoustic trauma during active service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For the purposes of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 (2013). Some chronic diseases, including sensorineural hearing loss, are presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is available for sensorineural hearing loss as an organic disease of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service records reflect that the primary specialty was Aircraft Maintenance Technician Turbo-Prop Aircraft. The report of separation from the Army National Guard following his membership from August 1979 to January 1993, shows that his principal specialties were Chemical Operations Specialist and Aircraft Powertrain Repairer. Service treatment records include the report of the Veteran's April 1966 enlistment examination. After conversion to the present ISO (International Standards Organization) standards, pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 0 LEFT 25 10 10 10 10 On examination in December 1967, for the purpose of "initial flying", pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 -10 -10 -10 -10 LEFT -5 -5 -10 -10 -10 At the September 1973 separation examination, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 0 LEFT 5 0 0 5 5 Service treatment records do not show any complaints or findings referring to ear or hearing problems. During a July 2010 VA examination, the Veteran reported complaints of hearing loss. He reported that he had had duties in service as an aircraft crew chief, with exposure to noise from aircraft engines, vehicles, and tanks. He reported no complaints of tinnitus. On audiology examination, pure tone thresholds and speech recognition scores using the Maryland CNC Test, were as follows: HERTZ CNC 500 1000 2000 3000 4000 % RIGHT 5 0 0 5 55 100 LEFT 0 0 0 35 55 100 The report contains a diagnosis of sensorineural hearing loss, bilaterally. The examiner opined that based on review of service medical records, personal interview, and audiometric testing, the Veteran's hearing loss is less likely as not a result of noise exposure during service; hearing was within normal limits at separation from service. The Veteran testified in April 2012 that his bilateral hearing loss was caused by his military service, and that he first noticed the onset of his hearing loss when it was noted in 1986 at his first hearing test with his employer, while he was still serving with the Army National Guard. He testified that during service he was a crew member and crew chief for maintenance of jet engine aircraft. He was involved in maintenance, fueling, and making sure the engines were properly tuned and kept up to speed. He reported using hearing protection of ear plugs and earmuffs, which were not effective in protecting from the high intensity of the aircraft engines. He worked in this job for 3.5 years. Then he spent 2.5 years as an instructor of aircraft maintenance of B-52 aircraft. He testified that he had a hearing loss when he was discharged in 1973. During his membership in the Army National Guard, he had a dual capacity specialty. His duties in a tank battalion entailed monitoring by radio and overseeing tank firing during the 14-day summer camps each year, when he was located approximately 150 to 200 feet behind the tanks that were lined up and firing. He oversaw the firing of the tanks on a 12-hour period, and then would retire to a location 600 feet away from the tank ranges, and even there he was "under constant bombardment of the firing orders" meaning exposed to the tank noise. He reported that the only hearing protection worn was the headset of the radio. He did not remember ever reporting problems with hearing loss during his service from 1966 to 1973. He first began to notice a hearing loss in 1986. He testified essentially that his civilian job on the production line for aircraft assembly did not expose him to noise, and his only hobby was fishing. The Veteran testified again in August 2013 as to his inservice exposure to noise over his long career in the Air Force as a jet mechanic, and then over 13 years in the Army National Guard working around tanks firing weapons. In summary, the VA audiological results from the July 2010 VA audiology examination support a finding of current hearing disability in both ears for purposes of entitlement to VA benefits. 38 C.F.R. § 3.385 (2013). The Board finds that the Veteran was exposed to numerous and frequent episodes of loud noise and the expected injuries associated with acoustic trauma over a long military career. This is consistent with the Veteran's account of many incidents of noise exposure while working around jet and other aircraft, and from tanks including weapon firing. Although no hearing loss is shown during active service, service connection may still be established if it is shown that a current hearing loss is related to service. The Veteran is not required to show that he met the criteria of 38 C.F.R. § 3.385 at separation if he has a hearing loss that is otherwise shown to have begun in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The evidence is at least in equipoise on all the elements of service connection. The Veteran is competent to describe the extent of hearing impairment he has perceived continuously since service. He has testified credibly as to the continuity and extent of his perceived hearing loss since service. This is consistent with service treatment records showing a worsening of his hearing at Hertz levels measured between the time of the early audiology examination in December 1967 and the September 1973 separation examination. As the Veteran's lay testimony evidence competently identifies the bilateral hearing loss that was later diagnosed by the VA examiner it is, likewise, competent, probative, and sufficient evidence to establish the hearing loss etiology. The VA examiner at the July 2010 VA examination opined that the Veteran's hearing loss is less likely as not-that is, not likely-a result of noise exposure during service, essentially on the mere basis that hearing was within normal limits at separation from service. Such is not required for service connection; such is not the law; and such cannot serve as the sole basis for his opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran's competent and credible report of the continuity of symptomatology of hearing impairment later diagnosed as a hearing loss meeting VA criteria to be considered a disability, provides that etiological link between the present hearing loss disability and the rather significant history of inservice noise exposures. The evidence of record is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to service. Resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.303, 3.304. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs