Citation Nr: 1337518 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-26 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from February 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Lincoln, Nebraska. The Veteran testified at a Videoconference hearing before the undersigned in August 2011. A transcript of this hearing has been associated with the claims folder. FINDING OF FACT The Veteran's bilateral hearing loss disability is related to his military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). This is so because the Board is taking action favorable to the Veteran by granting the issue of entitlement to service connection for bilateral hearing loss. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In December 2009, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing is considered 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service department readings prior to October 31, 1967, are presumed to be in American Standards Association (ASA) units and must be converted to International Standard Organization (ISO) units to be compared with later results. At the time of the Veteran's enlistment examination in August 1966, pure tone thresholds after conversion to ISO units, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 0 0 0 LEFT 25 5 0 0 10 At the time of the Veteran's separation examination in October 1970, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 10 LEFT 0 5 5 5 5 On the authorized audiological evaluation in January 2010, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 10 15 25 LEFT 30 20 15 20 30 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear. The Veteran reported that he was exposed to acoustic trauma during active duty in the form of jet engine noise. After service, he was exposed to the sound of radio controlled airplane engines. The examiner opined that the Veteran did not have hearing loss due to military service. The rationale was that the Veteran's hearing sensitivity was normal at discharge. In March 2010, the RO denied service connection for bilateral hearing loss. The basis for the ruling was that the Veteran did not exhibit hearing loss for VA purposes at the time of the January 2010 audiological evaluation. In June 2010, a private audiologist wrote that he had reviewed the Veteran's claims file and opined that the Veteran's current hearing loss was more likely than not the result of his four years of military service as a jet mechanic. The physician observed that audiological testing revealed a significant threshold shift between the Veteran's entrance and separation physicals, indicating a loss of auditory acuity. The Veteran submitted the results of a private audiogram which was conducted in August 2011. The testing revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 40 25 20 20 LEFT 60 35 25 30 35 Speech audiometry was conducted using the Maryland CNC word list. This revealed speech recognition ability of 100 percent in both ears. In August 2011, the Veteran testified before the undersigned that he was a jet engine mechanic during active duty and was exposed to noise while on the flight line. After service, he was exposed to some air tools but his radio controlled airplanes were quiet. He began to notice problems with his hearing in the 1970's. Based on the above, the Board finds that service connection is warranted for bilateral hearing loss. There is evidence of in-service injury. The Board finds the Veteran is competent to testify as to acoustic trauma he experienced during active duty and also finds that the Veteran's reports of exposure to acoustic trauma as a jet engine mechanic to be consistent with the nature and circumstances of his service. The Board finds that there is competent evidence of the current existence of hearing loss for VA purposes based on the results of the August 2011 audiological testing. The testing complied with the requirements of 38 C.F.R. § 4.85. The Board finds that there is competent evidence linking the current hearing loss to the Veteran's active duty service. The June 2010 letter from the private physician provides such a link. The Board notes that the examiner who conducted the January 2010 VA examination opined that the Veteran's current hearing loss was not linked to active duty. However, the only rationale provided was that the Veteran's hearing was normal at discharge. Significantly, it is noteworthy that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability (38 C.F.R. § 3.385) in both ears during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, where there is no evidence of the appellant's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Such a relationship was established by the June 2010 private physician's letter. In light of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs