Citation Nr: 1342335 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-03 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran had active service from July 1956 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2012. A transcript of this proceeding is associated with the claim file. The Board remanded the issue for further development in May 2012, February 2013, and July 2013. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. FINDING OF FACT Resolving the benefit of the doubt in the Veteran's favor, hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for hearing loss are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. In a July 2013 Remand, the Board ordered the AMC furnish a VA examiner with the Veteran's claim file so that he or she might comment on previous VA examinations and the findings of the Veteran's daughter, who is an audiologist. For reasons which are incomprehensible to the Board, this was not done. Rather, in its September 2013 supplemental statement of the case, the AMC re-considered an April 2013 VA examination previously deemed insufficient by the Board. The Board is obligated by law to ensure that the AMC complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA adjudication system is a paternalistic one and, in light of the evidence already of record, a decision to remand the issue yet again (for a fourth time) clogs the system, frustrates the Veteran and, based upon the history of this case, would accomplish nothing. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. §3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran asserts that his present hearing loss is due to service. He has reported that he first experienced trouble hearing in 1966. Service treatment records are silent as to any complaints of or treatment for hearing loss; however, reports of medical examinations demonstrate some hearing loss. See July 1956, February and March 1966, August 1973, and January 1976 audiological results. The Veteran is shown to have served for twenty years on a flight line as a security officer and to have served in the Republic of Vietnam. See Service Personnel Records; March 2012 Board Hearing. Post-service records include a March 2012 report from the Veteran's daughter, a VA audiologist. In her report, C.S. noted that she had reviewed a private audiogram conducted in 2007 as well as the Veteran's statement regarding his noise exposure to include exposure to machine guns, mortars, landmines and bombs in Vietnam. C.S. concluded that it was at least as likely as not that the Veteran's hearing loss was related to military noise exposure based on his extensive service in the Air Force, military occupational specialty which exposed him to hazardous noise, and noise exposure during his two tours in Vietnam. Also included in the Veteran's claim file are the findings of April 2008, July 2012 and April 2013 VA examiners. In prior remands, these VA examinations were found to be inadequate due to the examiners' failure to address evidence beyond the Veteran's service treatment records, and failure to discuss the fact that a decrease in the Veteran's hearing was demonstrated during his service. Following examination, each VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to military service. As their rationale, the VA examiners noted that hearing testing was "normal" during service, and that review of 1966 and 1976 hearing examinations demonstrated no significant change of hearing in either ear. The Veteran's daughter, as an audiologist, is competent as a medical professional to provide a nexus opinion relating her father's hearing loss to his service. In light of the thorough report provided by C.S. and her expertise, the Veteran's daughter is not considered a lay person by the Board, but instead is shown to have acted in her capacity as a medical professional. When combined with the Veteran's lay observations of hearing loss beginning in service, the evidence in favor of the Veteran's claim is, at the very least, in equipoise with that against it. VA has failed to demonstrate by a preponderance of the evidence that hearing loss is not related to service and, accordingly, service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for hearing loss is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs