Citation Nr: 1339272 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-00 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from February 1963 to December 1965 and January 2003 to December 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue of tinnitus was granted in full by an October 2010 rating decision, and therefore is not before the Board. 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 October 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 FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). As the Board is granting entitlement to service connection for bilateral hearing loss, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Merits of the Claim The Veteran seeks service connection for a 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 a January 2010 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 June 2002 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, some of the Veteran's audiograms, such as his October 1965 separation exam, are incomplete. Despite this, there is sufficient evidence to note in-service exposure to hazardous noise and to render a decision. In the January 2010 rating decision, the RO noted that the Veteran's Military Occupational Specialty put him at risk for exposure to hazardous noise. The Veteran presented statements in his October 2011 videoconference hearing regarding his noise exposure as a lineman, tank commander and combat engineer. He testified that his duties frequently exposed him to loud generators, tank firing and C4 explosions. The Veteran's form DD-214 corroborated his Military Occupational Specialties. The appellant stated that he did not use any ear protection during this time. The Veteran is competent to describe the symptoms he has experienced and the noises he heard during service. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran stated that he was not exposed to hazardous noise in his civilian career. 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. At his October 2011 hearing, the Veteran stated that his hearing loss started sometime after he joined the National Guard in 1972. As discussed above, the Veteran is competent to give this evidence. Furthermore, the Board finds the Veteran's statements regarding his hearing loss credible because they are facially plausible and correspond with the decrease in hearing shown by the available medical data. His statements also 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. 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). This statement is corroborated by the fact that he failed several hearing tests in the National Guard. Despite this, his superior gave him a waiver to enable him to continue his service. As shown by private medical records in April and June 2002 and incomplete Army clinic records in February 2003, the Veteran had bilateral hearing loss before the completion of his second tour of active duty. Therefore, a chronic disability listed in 38 C.F.R. § 3.309(a) was noted in National Guard service by the Veteran, though its chronicity was not yet established. Unfortunately, the available data does not indicate whether this disability was noted while on Active Duty for Training or Inactive Duty Training. The Army clinic audiogram was done during active service, but is incomplete. Therefore, while there is competent and credible evidence of continuity of symptomatology for bilateral hearing loss, the Board must seek another avenue to grant. At the January 2010 VA examination, the examiner stated that he could not form an opinion without resorting to mere speculation. Although the Veteran's duties put him at risk for hearing loss, there was no separation examination after his 2003 tour of active duty. In what appears to be an updated opinion, the examiner later opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of military service. His rationale was that while the Veteran showed bilateral hearing loss in both May 1991 and February 2003, there was no decrease in hearing between the two dates. Significantly, in a July 2010 addendum to the examination, the examiner stated, "[i]t's a coin toss as to whether or not his hearing loss was aggravated by the 2003 deployment in the absence of an audiogram." This indicates that the examiner believes is it as likely as not that the Veteran's bilateral hearing loss was aggravated by his 2003 deployment. Therefore, this etiological opinion places the evidence in equipoise. 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 October 1965 separation examination showing normal hearing, there is also medical opinion evidence that states that whether the Veteran's hearing loss was aggravated by his 2003 tour of active duty is a "coin toss." The Board again notes that the appellant served as a combat engineer while on active duty in 2003. Hence, the Board finds that the evidence in this case has reached 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