Citation Nr: 1341970 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 10-29 024 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1957 to March 1961 and July 1962 to March 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the RO that denied service connection for bilateral hearing loss and granted service connection for tinnitus. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in May 2012. A copy of the transcript is associated with the claims file. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue on appeal. FINDING OF FACT The currently demonstrated bilateral hearing loss disability is shown as likely as not to be due to the Veteran's exposure to hazardous noise levels during his periods of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by bilateral hearing loss is due to disease or injury that was incurred in his active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Legal Principles and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system to include sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran asserts that his current bilateral hearing loss is due to his exposure to excessive and harmful noise during active service. The April 2009 private audiogram and June 2009 VA examination report establish that the Veteran has a current hearing loss disability. 38 C.F.R. § 3.385. A review of the service personnel records show that his military occupation specialties included that as an airplane mechanic and as an airman. The Veteran testified in May 2012 that he was exposed to jet engine noise. Given this factual background, his assertions of exposure to significant noise is found to be consistent with the circumstances of his service. As such, in-service noise exposure is acknowledged. 38 U.S.C.A. § 1154(a). The record contains conflicting evidence pertaining to the relationship between the Veteran's hearing loss and his in-service noise exposure. The Veteran's service treatment records showed that on audiological evaluation at separation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 (15) 0 (10) 0 (10) 5 (15) 5 (10) 15 (25) LEFT -5 (10) 0 (10) 0 (10) 5 (15) 5 (10) 15 (25) (Prior to November 1967, in-service audiometric examination findings were generally reported in standards set forth by the American Standards Association (ASA). That is the figure on the left not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standard has been converted to ISO-ANSI standards and is represented by the figure in parentheses.) As such, there is evidence of hearing loss, not rising to the level of a disability for purposes of a VA disability, on separation in February 1963. See 38 C.F.R. § 3.382; Hensley, 5 Vet.App. at 160. The Veteran was afforded a VA examination in June 2009 and reported exposure to jet engine noises while working on the flight deck. He stated that hearing protection was not provided. The examiner diagnosed the Veteran with bilateral mid to high frequency sensorineural hearing loss and opined that the hearing loss was not caused by or a result of military noise exposure. The examiner reasoned that his hearing was within normal limits at separation and noted that the hearing loss might be a result of occupational noise exposure and the aging process. The Board notes that the examiner found his tinnitus to be at least as likely as not caused by or a result of military noise exposure. The Board has also considered the Veteran's lay statements. The Veteran asserted in his April 2009 claim that his bilateral hearing loss began in the "mid 1960s." The Veteran is competent to report as to the symptoms he experiences, such as hearing difficulty and its history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). To the extent that the Veteran now asserts having hearing problems that began with his extensive noise exposure in service, the Board finds his lay statements to be credible and sufficient to provide a basis for linking the onset of the claimed condition to service. While the opinion of the June 2009 VA examiner weighs against the claim, the Board finds that this opinion to be of limited probative value to the extent that the examiner did not fully assess the evidence of hearing loss at separation and the Veteran's assertions of in-service noise exposure. In resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. Gilbert, 1 Vet. App. at 53. ORDER Service connection for bilateral hearing loss disability is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs