Citation Nr: 1341797 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 11-30 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 Luke McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in relevant part, denied service connection for bilateral hearing loss. FINDING OF FACT The Veteran's bilateral hearing loss was incurred in, or caused by, his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claim of entitlement to service connection for bilateral hearing loss has been granted, as discussed below. Consequently, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran asserts that he has bilateral hearing loss that resulted from acoustic trauma which occurred when he was a tank crewman during combat in Vietnam. Specifically, the Veteran contends that his acoustic trauma involved loud noise from firing the tank gun and exposure to artillery, mines, and other explosions. He maintains that his bilateral hearing loss began during service and continued thereafter. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection may be established on a direct basis with evidence showing (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 the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). Under the second Shedden element, there must be evidence of a relevant disease, injury, or event during active service. See Shedden, 381 F.3d at 1166-67. Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). This presumption is rebuttable only by clear and convincing evidence. Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). Although service connection for a combat-related injury may be based on lay statements alone, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits. See Shedden, 381 F.3d at 1166-67 (observing, in pertinent part, that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities . . . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty."); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In adjudicating a service connection claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For VA purposes, 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. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. Audiometric testing performed at an April 2010 VA examination confirmed that the Veteran has a current hearing loss disability for VA purposes. The Veteran had puretone thresholds above 40 decibels in both ears at 3,000 and 4,000 Hertz. See 38 C.F.R. § 3.385. Additionally, the Veteran served in combat and was exposed to acoustic trauma while serving in a tank battalion in Vietnam. In this regard, the Veteran's service treatment records (STRs) establish his combat service. A December 1966 "Report of Wound/Injury" reflecting that in the Veteran sustained a head injury in the "Vicinity of Danang Republic of Vietnam" due to hostile activity. A December 1966 notation states that the Veteran's head was "severely bruised by concussion" when his tank hit a mine. Further, the Veteran's claim of hazardous noise exposure involving loud noise from firing the tank gun and exposure to artillery, mines, and other explosions is consistent with the circumstances, conditions, and hardships of combat service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). As such, the Veteran's lay statements are sufficient to establish in-service noise exposure. Id. See also Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Board notes that because there is no competent evidence showing that the Veteran's hearing loss was manifest to a degree of 10 percent or more during the first year following separation from service, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, the determinative issue is whether the Veteran's current hearing loss is related to service. The Veteran was afforded a VA audiological examination in April 2010, with nexus opinions provided in June 2010 and October 2011. The April 2010 examiner noted the Veteran's military noise exposure and his post-service occupational noise exposure as a machinist, diagnosing moderate to moderately severe high frequency hearing loss. In a June 2010 opinion, a VA audiologist opined that, although the Veteran's tinnitus was likely related to in-service acoustic trauma, his hearing loss was less likely than not related to service. The examiner based the opinion on the lack of evidence of complaints or diagnoses of hearing loss in his STRs coupled with the normal whispered voice test on separation. The examiner also opined that the Veteran's hearing loss was more likely related to post-service occupational noise exposure, among other factors. In an October 2011 addendum opinion, another audiologist echoed the June 2010 audiologist's rationale and opinion, stating that the lack of complaints of hearing loss in the STRs and the normal whisper test suggests grossly normal hearing on separation. The June 2010 and October 2011 VA audiological opinions are inadequate for several reasons. First, the opinions were essentially based on a lack of evidence of hearing loss pathology in the Veteran's STRs. The lack of documented hearing loss while in service is not fatal to a claim for service connection. Rather, even though disabling hearing loss may not be demonstrated at time of separation from service, a veteran may nevertheless establish his entitlement to service connection for a current hearing loss disability by having evidence that the current disability is related to his military service and not the result of intercurrent or other unrelated factors or causes. See Hensley, 5 Vet. App. at 159-160; Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Second, the opinions are based, in part, on a determination that the Veteran had normal hearing on separation as evidenced by the results of a whispered voice test. However, as noted by the Veteran's representative, a whispered voice test would not have detected high frequency hearing loss. Thus, the characterization of the Veteran's hearing as normal at separation was not supported by objective medical evidence. Finally, the opinions did not address the Veteran's report of experiencing hearing symptoms during and continuing since service, or his exposure during combat to hazardous noise or acoustic trauma. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (determining that an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in his STRs to provide a negative opinion). Thus, because the June 2010 and October 2011 audiological opinions provided inadequate rationales for the conclusion reached, they are entitled to little, if any, probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Board finds that the Veteran's lay statements constitute competent and credible evidence regarding the onset and duration of his hearing loss disability. The Veteran is competent to report observing a decline in his hearing acuity during and since serving in combat in Vietnam, as hearing loss is a condition with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, the Veteran is credible in his report of suffering a loss in hearing during service. In this regard, he has competently stated that he experienced hearing loss following exposure to hazardous, combat-related noise and that he has experienced hearing loss since that time. The Board has no reason to doubt the credibility of his statements. Moreover, his description of experiencing hearing loss after acoustic trauma is consistent with his STRs evidencing that he sustained injuries as a result of an explosion during combat. See Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Thus, there is competent and credible evidence that bilateral hearing loss occurred after acoustic trauma during his service. Because the board finds that the Veteran's statements are credible, they are ultimately probative and weigh in favor of the claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). In the absence of any probative evidence weighing against the claim, the Board finds that the evidence is not sufficient to rebut the presumption that the Veteran's bilateral hearing loss manifested during his combat service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Collette, 82 F.3d at 393. In light of the Veteran's in-service, combat-related acoustic trauma, his credible history of hearing loss in and since service, and his current diagnoses of bilateral hearing loss, the Board concludes that the preponderance of the evidence supports the grant of service connection for bilateral hearing loss. Following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Therefore, the Veteran's claim for service connection for bilateral hearing loss is granted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs