Citation Nr: 1341437	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  12-06 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for left ear hearing loss.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from September 1953 to September 1955.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for bilateral hearing loss and tinnitus.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2012.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

In February 2013, the Board granted service connection for a hearing loss disability of the right ear and tinnitus, and remanded the issue of service connection for left ear hearing loss for further development to include a new VA medical examination.  Such an examination was accomplished in February 2013, and all other development directed by the remand appears to have been substantially accomplished.  Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).


FINDINGS OF FACT

The record reflects it is at least as likely as not that the Veteran has a current hearing loss disability of the left ear that developed as a result of his active service.


CONCLUSION OF LAW

The criteria for a grant of service connection for a hearing loss disability of the left ear are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.  

As noted in the Introduction, the Board granted service connection for right ear hearing loss in February 2013.  The Board essentially stated, at that time, that the reason service connection was not also being granted for left ear hearing loss was because the evidence did not show a hearing loss disability of that ear as defined by 38 C.F.R. § 3.385, to include a November 2010 VA audio examination and private audiograms dated in 2005 and 2008.  However, the more recent February 2013 VA audio examination does show a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385.  Specifically, audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
Average
RIGHT
35
30
35
80
80
56
LEFT
30
25
35
40
40
35

Speech recognition scores were 90 percent for the right ear, and 100 percent for the left ear. 

The Board finds that nothing in the evidence added to the record, to include the opinions of the February 2013 VA examiner and March 2013 addendum, warrants any change in its analysis of this case as expressed in February 2013.  Pursuant to this analysis, to include resolving all reasonable doubt in favor of the Veteran, the Board finds that the record reflects it is at least as likely as not that the Veteran has a current hearing loss disability of the left ear that developed as a result of his active service.  Therefore, service connection is warranted for this disability.


ORDER

Service connection for left ear hearing loss is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs