Citation Nr: 1338424 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-30 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and David Ross ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from January 1970 to April 1972, and from May 1974 to March 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. VA received new evidence after the case's transfer to the Board. The VA received this evidence and a waiver of RO consideration in November 2011. Therefore, the Board need not remand and may properly proceed with its adjudication. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals no additional records which are pertinent to the present appeal. In November 2011, VA held a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran's bilateral hearing loss was as likely as not incurred in or aggravated by service. CONCLUSION OF LAW A bilateral hearing loss was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim and, as warranted by law, affording the Veteran a VA examination in October 2009. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Merits of the Claim The Veteran seeks service connection for bilateral hearing loss. Having carefully considered the claims in light of the record and the applicable law, the Board is of the opinion that the criteria for entitlement to service connection for bilateral hearing loss have been met. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be a chronic disability resulting from that injury. 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system, including sensorineural hearing loss. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). The Veteran has a current hearing loss disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 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. At the October 2009 VA examination, the Veteran demonstrated hearing acuity of 40 decibels or greater in the 2000, 3000 and 4000 Hertz thresholds bilaterally. He also demonstrated acuity of greater than 26 decibels in the same range. His audiogram results from private examiners in April 2011 and January 2009 show a similar pattern. Thus, the Veteran has a current disability in accordance with 38 C.F.R. § 3.385. The remaining questions, therefore, are whether there is evidence of an in-service occurrence of an injury or disease and whether there is evidence of a nexus or relationship between the current disability and the in-service disease or injury. In the instant case, most of the Veteran's service treatment records are unavailable. The lone audio examination, in October 1979, which was well before the end of the Veteran's service, shows his hearing to be within normal limits. In the June 2010 Statement of the Case, VA concedes that the Veteran's exposure to military noise in service is plausible. The Veteran presented statements at his November 2011 videoconference hearing that in the course of his duties as a mechanic and military police officer, he was exposed to significant amounts of vehicle and firearms noise. He reported being exposed to a variety of firearms noise including frequent qualifying trainings, recreational shooting and firing in the course of duty. Furthermore, he stated that he endured most of this noise exposure without ear protection. While the Veteran was exposed to similar firearms noise in his civilian occupation as a policeman, he stated that he abided by the rigorous ear protection policies and procedures required by his department. The Veteran is competent to describe the symptoms he has experienced and the noises he heard during service and then in his civilian career. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Although his post-service career involved noise exposure, the Board concedes noise exposure in service and notes that after service, the Veteran employed rigorous ear protection practices. Although there is no diagnosis of chronicity for the Veteran's decrease in hearing, service connection can be warranted by continuity of symptomatology after discharge. If a chronic disease is noted during service, but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1336. Hearing loss is not in the list of chronic diseases in 38 C.F.R. § 3.309(a), to which Walker limited this method of service connection. Id. However, organic diseases of the nervous system are listed in 38 C.F.R. § 3.309(a), and sensorineural hearing loss falls into this category. In a May 2009 statement, the Veteran noted that his hearing loss started while he was still on active duty. At the VA examination, he reiterated this statement and added that his hearing had gradually decreased since then. As discussed above, the Veteran is competent to give this evidence. Furthermore, the Board finds the Veteran's statements regarding his hearing loss credible. While the one in-service examination on record puts the Veteran's hearing within normal limits, it is a solitary point of data, whereas the Veteran has consistently asserted his hearing loss began in service. His statements are facially plausible and align with his statements of tinnitus beginning in service, which have already been deemed credible by the VA in that his claim for tinnitus was granted. Therefore, a chronic disability listed in 38 C.F.R. § 3.309(a) was noted in service by the Veteran, though its chronicity was not yet established. The Board finds the Veteran's statements concerning his hearing loss in service competent, as they are something which he experienced. The Board also finds the statements credible, as they are facially plausible and corroborated by his other statements regarding his hearing disabilities. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Therefore, there is competent and credible evidence of continuity of symptomatology for bilateral hearing loss. The October 2009 VA examiner did not provide an opinion regarding the nexus between the Veteran's service and his current disability. The examiner stated that because there was no separation examination, she could not form a nexus opinion without resorting to mere speculation. In order to rebut the presumption of service connection invoked by continuity of symptomatology, there must be "affirmative evidence to the contrary." 38 C.F.R. § 3.307(b). While the examiner gave a rationale why her opinion does not reach an etiological conclusion, the examination is inadequate. The VA examiner mentioned, but did not take into account the Veteran's credible statements regarding his in-service noise exposure and continuous hearing disability since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). The appellant's statements should have been commented upon or addressed in the rationale portion of the opinion. However, it appears that the examiner only based her opinion on the lack of service treatment records. While the Board could remand for another exam, that would be an undue delay for this issue, as the Board is granting. There is also a positive etiological opinion relating the Veteran's service and his current hearing loss. In a November 2011 letter, Dr. R.M.R., an ear, nose and throat doctor who had been treating the Veteran, opined that it is more likely than not that the appellant's hearing loss was due to his unprotected noise exposure while in service. He further noted that the Veteran had previously sought treatment and had been evaluated at his practice. Dr. R.M.R. also stated that the Veteran's audiogram configuration was typical for one of noise-induced hearing loss. Therefore, there is a medical opinion which indicates a casual relationship between the Veteran's service and his current hearing loss disability. When there is an approximate balance of evidence in favor and against the Veteran, VA is to give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). While there is some evidence that tends to show that the Veteran's hearing loss disability is not service-connected, such as the in-service audiogram, there is also an unrebutted continuity of symptomatology that presumes a nexus between his hearing loss disability and his service. There is also a positive nexus opinion from a private doctor. The Board finds that the evidence in this case has reached or exceeded the point of equipoise. Therefore, based on its review of the relevant evidence, and after resolving reasonable doubt in the Veteran's favor, the Board finds that it is as likely as not that his bilateral hearing loss is service-connected. Id. Accordingly, service connection for bilateral hearing loss is granted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs