Citation Nr: 1337937	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  09-24 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel


INTRODUCTION

The Veteran served on active duty from June 1971 to June 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the benefit sought on appeal.  Jurisdiction of the Veteran's claims file is currently at the Atlanta, Georgia, RO.  

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2013.  A transcript of the hearing is associated with the claims file. 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS.  The Board has reviewed both the paper and electronic claims files in rendering this decision.


FINDING OF FACT

There is at least an approximate balance of positive and negative evidence as to whether the Veteran has bilateral hearing loss as a result of active service.


CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, bilateral hearing loss was incurred during the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  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).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision.  Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Legal Criteria

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may 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).

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

In adjudicating these claims, the Board must assess the competency and credibility of the veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge.  Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994).

Factual Background and Analysis

The Veteran contends that he currently experiences bilateral hearing loss attributable to in-service noise exposure from working on jets/aircrafts on the flight line.  For the reasons explained below, the Board finds the positive and negative evidence to be in relative equipoise and service connection is warranted for bilateral hearing loss.

Upon enlistment examination in April 1971, puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
10
15
LEFT
25
5
5
15
15

In March 1972, the Veteran was treated for otitis media.  His tympanic membranes were intact, but there was some slight inflammation of the internal canal noted.  The Veteran was not otherwise treated for complaints related to hearing problems.  

Discharge audiological examination revealed puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
10
15
LEFT
25
5
5
10
10

The evidence of record shows that the Veteran sought treatment for his hearing loss in late-2007 and was prescribed hearing aids.  In an October 2007 questionnaire, the Veteran described his hearing loss as "very poor" and that he seldom used hearing protection.  He indicated that he had never been diagnosed as having hearing loss.  The Veteran reported a history of military service and noise exposure from a previous job.  

In a July 2008 audiology report, the Veteran's treating audiologist opined that the Veteran's hearing loss "is probably due to noise exposure experienced in the military service."  

In August 2008, the Veteran was afforded a VA audiological examination, during which he reported that his hearing loss was first noticeable around 1992.  He endorsed military noise exposure from jet engines, post-service occupational noise exposure while working at a printing press and carpet factory, and recreational noise exposure from hunting.  The examiner noted that the Veteran's currently takes potentially ototoxic medications.  Following review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's current bilateral hearing loss disability is less likely than not caused by his in-service noise exposure.  In reaching this conclusion, the examiner noted that the Veteran's hearing was within normal limits from 500-4000 Hz at discharge from service and he reported the onset of hearing loss well after separation from service.  The audiologist additionally noted that the Veteran's bilateral hearing loss disability is more likely due to non-military etiologies such as aging, high blood pressure, occupational and recreational noise exposure (some without hearing protection), and usage of ototoxic medication.  He further indicated that "[i]t would be speculative to allocate a degree of his current hearing loss to each of these etiologies."  

The Veteran's treating audiologist provided another opinion in a letter dated in July 2013.  He stated that the Veteran's bilateral hearing loss is "more likely than not aggravated by his military service."  In reaching this conclusion, the audiologist pointed to the fact that the Veteran has a "notched, noise induced typical hearing loss centered around 3 to 4 thousand [H]ertz."  He stated that this type of hearing loss is "very typical of a noise induced sensorineural hearing loss."  

During his June 2013 hearing, the Veteran reported using hearing protection buds while in service.  He noted the noise level was extremely high and he had to yell to converse with others.  Following service, the Veteran testified that he worked at a printing press.  Although hearing protection was available, it was not mandatory, and he did not use it.  He reported that the noise exposure at the printing press was nothing compared to the flight line while in service.  

First, the Board finds that the audiological examinations dated in July 2008, August 2008, and July 2013 all show a bilateral hearing loss for VA purposes.  As such, the requirements of 38 C.F.R. § 3.385 are met.  Thus, the question that remains before the Board is whether the Veteran's current hearing loss was caused or worsened by his military service.  

The Board finds that the July 2008, August 2008, and July 2013 opinions are all probative and competent evidence as to the etiology of the Veteran's bilateral hearing loss.  Both the Veteran's treating audiologist and the VA audiologist are competent and credible with respect to their opinions, and these opinions are supported by a detailed rationale and the evidence of record.  As such, the Board assigns both the positive and negative opinions equal weight.  

As the positive and negative evidence is in relative equipoise, all reasonable doubt is resolved in the Veteran's favor and service connection for bilateral hearing loss is granted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.  


____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs