Citation Nr: 1339030	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  08-13 606	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel

INTRODUCTION

The Veteran served on active duty from December 1959 to March 1962.  He thereafter served with the Puerto Rico Army National Guard until the year 2000.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of August 2007 of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for hearing loss.  

In February 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration.  The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the Veteran did in April 2012.  

In July 2012, the Board remanded the Veteran's claim in order that he could attend a Travel Board hearing.  The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2013, and a transcript of the hearing is in the Veteran's file.  Following that hearing, the Board granted the Veteran's claim for service connection for tinnitus and remanded his claim for service connection for bilateral hearing loss for further development in a June 2013 decision.  


FINDING OF FACT

The Veteran suffers from bilateral hearing loss that is causally related to his history of active and National Guard noise exposure.  



CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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.  

II.  Entitlement to Service Connection for Bilateral Hearing Loss

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131.  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). 

With regard to the Veteran's National Guard service, service connection is only warranted for injuries incurred or aggravated while performing inactive duty for training.  38 U.S.C.A. §§ 101(22)-(24), 106(d), 1110; 38 C.F.R. § 3.6(c), (d), 3.303.

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b).

The Veteran in this case seeks service connection for bilateral hearing loss.  For the reasons that follow, his claim shall be granted.  

First, the Veteran currently suffers from bilateral hearing loss.  The results of VA examinations, VA treatment records, and private treatment records all show that the Veteran suffers from bilateral hearing loss for VA purposes.  38 C.F.R. § 3.385.

Second, the Veteran was exposed to noise during his active and his National Guard service.  The Veteran contends that he served in the artillery during both periods of service, a fact corroborated by service documents.  In his April 2013 hearing, the Veteran described an incident where he temporarily lost hearing after being close to a firing gun.  Given the Veteran's testimony (which the Board finds to be both competent and credible) and the service document, the Board concedes that the Veteran was exposed to noise during his active service.  

The only remaining question is whether the Veteran's current bilateral hearing loss is related to his active or National Guard service.  Here, two VA examiners and a VHA specialist each concluded that it is less likely than not that the Veteran's current disability is related to his active service.

The Board, however, does not find the conclusions of these experts to be probative.  Neither the VA examiners nor the VHA specialist had access to the Veteran's service treatment records from his National Guard service, and none of those experts commented on the Veteran's credibly testimony of being exposed to artillery noise in his National Guard service.  Further, each expert stated that the Veteran had normal hearing at his 1962 separation.  However, when the findings there are converted to the modern standard, the evidence shows that the Veteran had hearing thresholds above 20 decibels, indicating at least some level of hearing loss.  See Hensley v. Brown, 5 Vet. App. 157 (1993) (normal hearing is from 0-20 decibels, and higher levels indicate some degree of impaired hearing loss).

In contrast to these medical opinions is the testimony and statements from the Veteran.  The Veteran has consistently stated that he suffered hearing loss during his active service, and that he continued to serve in an artillery unit during his National Guard service.  In a February 2005 VA audiology note, the Veteran placed the onset of his hearing loss in 1990, at a time when he was still in the National Guard.  In his April 2013 Travel Board hearing, the Veteran stated that he was advised during his National Guard service that he was losing his hearing.  He stated that he was first issued hearing aids while he was still in the National Guard.  He also testified that, in his civilian work, he was not exposed to noisy environments.  

Service treatment records from the Veteran's National Guard service corroborate his statements.  An August 1977 report of medical examination, for instance, shows that the Veteran's hearing had deteriorated since his 1962 separation examination.  A September 1982 report of medical examination showed that the Veteran was then suffering from hearing loss far beyond that considered disabling by VA.  Subsequent examinations in 1986 and 1991 show a continuing deterioration in the Veteran's hearing. 

Given the consistency of the Veteran's statements and the corroboration from service treatment records, the Board finds the Veteran's testimony and statements to be credible.  The Veteran is also competent to state when his hearing loss began, and his statements are once again confirmed by the service treatment records.  Considering these facts, the Board concludes that the more probative evidence of record indicates that the Veteran's hearing loss began during his National Guard service and that his current bilateral hearing loss is related to both his active and National Guard service.  Service connection for bilateral hearing loss is thus warranted.  



ORDER

Entitlement to service connection for bilateral hearing loss is granted.  



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs