Citation Nr: 1339969	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  10-06 078	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


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

Appellant


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from April 1971 to February 1973.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO).  In October 2011 a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file.  In April 2012 the Board remanded the matter for additional development.


FINDING OF FACT

It is reasonably shown that the Veteran's bilateral hearing loss had its onset in service, and has persisted since.   


CONCLUSION OF LAW

Service connection for bilateral hearing loss is warranted.  38 U.S.C.A. §§ 1110, 1157 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  Inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on the matter; any notice error or duty to assist omission is harmless.  At the hearing before the undersigned the Veteran was advised of what was still needed to substantiate his claim.
Legal Criteria, Factual Background and Analysis

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §  1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. §  3.303(d).

To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the current disability and the disease or injury in service.  See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Satisfactory lay evidence that an injury or disease was incurred or aggravated in combat will be sufficient if the evidence is consistent with the circumstances of service, even though there is no official record of incurrence.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

Hearing loss disability is defined by regulation.  For the purpose 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, 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.  For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

It is well-established in caselaw (See Hensley, supra) that service connection for hearing loss is not precluded where  hearing was within normal limits on audiometric testing at separation from service.  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record.  Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 

The Veteran contends that his hearing loss was sustained from exposure to hazardous levels of noise (including during combat) in service (from various weapons, aircraft, and armored vehicles).  

The Veteran's service personnel records show that he served in combat, including in an aviation battalion.  His accounts that he was a helicopter door-gunner and was exposed to artillery and aircraft noise are consistent with the circumstances of his service.   

The Veteran's service treatment records are silent for complaints, findings, treatment, or diagnosis pertaining to hearing loss.  Audiometry on January 1971 service pre-induction examination showed normal hearing bilaterally (all puretone thresholds were between 0 and 15 decibels).  
On February 1973 service separation examination audiometry, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
10
5
5
5
LEFT
30
10
10
5
5

On July 2009 VA audiology examination, the Veteran reported that during service he was a door gunner and reconnaissance specialist.  He described exposures to aircraft and weapons  noise in service.  He stated that after separation from service he was a welder, but did not feel that occupation was noisy, as he would only hear a hissing sound while welding.  He denied any recreational noise exposure.  Audiometry showed that puretone thresholds, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
10
45
LEFT
15
15
40
15
45

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear.  The diagnosis was moderate very high frequency sensorineural hearing loss bilaterally.  The examiner opined that it is less likely as not that the Veteran's current hearing loss is a result of acoustic trauma during military service.  The examiner explained that the Veteran's separation hearing examination indicated "normal hearing sensitivity" with "no significant change from the entrance hearing examination".  

It is not in dispute that the Veteran now has a hearing loss disability (as defined in 38 C.F.R. § 3.385 ) or that he served in combat and was exposed to combat-related  noise trauma in service.  What remains necessary to substantiate his claim is a nexus between the two.   The Board notes the "negative" nexus opinion by the July 2009 VA examiner.  However, there are problems with that opinion, and therefore it may not be dispositive.  Specifically, the examiner explained that the rationale for the opinion was that separation audiometry was normal, and that there was no significant threshold shift during service.  However, that opinion does not account for the Court's holding in Hensley (that normal audiometry at separation does not preclude a finding of service connection).   More significantly, it appears to be based on an inaccurate factual background, as the findings of "normal hearing sensitivity" on separation audiometry and "no significant change from the entrance examination" do not account for the clearly elevated puretone thresholds at 500 hertz on separation (and consequently evident significant puretone shift at that frequency).  

What the factual record shows, in fact, is that the Veteran had "some degree of hearing loss" at service separation (see Hensley, supra, at 157).  He has testified he noted the onset of hearing loss in service, and that he sought treatment for such soon after service (records of which are no longer available -the facility closed).  He is entitled to the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b).  His accounts are not inconsistent with the circumstances of his service, and the Board does not find reason to question them.  Accordingly, the record shows that a hearing loss disability had its onset in service (which is one way of establishing nexus of current disability to service).  See 38 C.F.R. § 3.303(d).   All of the requirements for establishing service connection are met.  Service connection for bilateral hearing loss is warranted.


ORDER

The appeal seeking service connection for bilateral hearing loss is granted.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs