Citation Nr: 1339191 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 13-18 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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 Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. While the Veteran's representative has requested a Travel Board hearing (see Informal Hearing Presentation), given the full favorable disposition herein no hearing testimony of the Veteran will be required. FINDINGS OF FACT 1. The Veteran had in-service acoustic trauma with hearing loss therein. 2. His current bilateral hearing loss represents the continuation of the in-service pathology. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for bilateral hearing loss. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the claim is being granted, any error related to the VCAA is rendered moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those above-referenced diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. Where lay testimony provided regarding in-service injury is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran alleges severe acoustic trauma incidental to combat service while in Vietnam, continuing therefrom up until the present time period. Reviewing this case, the essential elements warranting a grant of service connection for bilateral hearing loss are met. By way of the June 2012 VA Compensation and Pension examination report, the Veteran's recent audiometric test findings clearly met the criteria under VA law for a hearing loss disability, in accordance with 38 C.F.R. § 3.385. Consequently, there is evidence of the current claimed disability. The remaining elements of this claim to be demonstrated consist in-service injury, and causal nexus between service and present-day symptomatology. Moreover, the Veteran clearly had in-service injury consistent with his service in an infantry unit. He reports acoustic trauma while in Vietnam, where he recalls his ears bleeding and then aching for a while. See 38 U.S.C.A. § 1154(b). The underlying fact of hearing loss disability at the time of in-service injury is likewise presumed. See Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Board then considers the Veteran and his spouse's statements to the effect that he had continuous hearing difficulty since service to provide indication of continuity of symptomatology from service for hearing loss, as a chronic sensorineural condition under 38 C.F.R. § 3.309(a), and proving the final element of a causal nexus to service. The contrary medical opinion from the June 2012 VA examiner which noted the normal hearing thresholds at separation did not take into account the Veteran's lay assertions of hearing loss during and since service as substantiating evidence, and is not probative. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, the criteria for service connection are met. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs