Citation Nr: 1337788 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-33 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to October 1969, with additional prior unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's claim for service connection for bilateral hearing loss. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is associated with his appeal. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records therein that are not also in the paper claims file. FINDING OF FACT The Veteran has current bilateral hearing loss that was incurred as a result of noise exposure in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1112(a) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the claim for service connection for bilateral hearing loss, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Governing Laws and Regulations Service connection requires 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). Listed chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. § 1112, 38 C.F.R. §§ 3.307, 3.309. Also, the second and third elements may be established by showing continuity of symptomatology for chronic diseases specifically listed at 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has taken the position that sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease subject to presumptive service connection and the continuity provisions of 38 C.F.R. § 3.303(b). See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or 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 1313, at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the purposes of applying laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater; or when the auditory thresholds for at least three of these frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The results of a February 2011 VA examination, establish that the Veteran has current hearing loss in both ears as defined in 38 C.F.R. § 3.385. The service treatment records do not show findings of hearing loss, but they also do not show that the Veteran underwent any hearing tests after he was accepted into service and a service separation examination is not of record. The Veteran has submitted statements in which he reported noise exposure during combat in Vietnam. At the February 2011 examination, the Veteran has reported that during service he was exposed to noise from firing ranges and field exercises without the benefit of hearing protection. He also reported that as a section chief in an artillery unit, he plotted weather information for a fire detection center. During this time he was exposed to noises from rocket attacks, ground fire, mortars, tanks, grenades, helicopters, and generators. He noted that his post-service occupation was as an FBI Agent, but insisted that he wore hearing protection while on the range. The Veteran also reported that he experienced recreational noise exposure from turkey hunting, once per year, without hearing protection. The Veteran's service separation form, his DD-214, indicates that he served from May 1968 to October 1969, with 11 months of foreign service in the United States Army-Pacific (USARPAC), and served as meteorology plotter and weather observer. He received a bronze star medal among other decorations. The Veteran's reports are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a), (b) (West 2002). The evidence thus establishes an in-service injury. The February 2011 VA examiner reported that she could not provide an opinion as to whether the Veteran's bilateral hearing loss was related to service without resorting to mere speculation. She noted that there was no separation exam associated with the claims file. The examiner cited to a Summary of Institute of Medicine Report which highlighted the difficulty in determining with certainty how much of a veteran's hearing loss was acquired or aggravated during military service without audiograms at the beginning and end of service. The examiner's opinion weighs neither for nor against the Veteran's claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. The Veteran, as a layperson, is competent to report that he developed symptoms of bilateral hearing loss during active service and has experienced them since. The Veteran provided competent and credible reports of continuity of symptomatology in his December 2010 claim and at the February 2011 VA exam indicating that he experienced symptoms of bilateral hearing loss since service. His statements, therefore, have significant probative value. Indeed there is no evidence against his reports. The evidence of record shows that the Veteran has current bilateral hearing loss disability, that he experienced acoustic trauma during service; and had a continuity of symptomatology since service. The elements for service connection have been established. Accordingly, all doubt with respect to the claim is resolved in favor of the Veteran, and his claim for service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs