Citation Nr: 1343080 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 12-11 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned at a March 2013 Travel Board hearing. The hearing transcript is of record. FINDING OF FACT The Veteran's bilateral hearing loss is related to in-service noise exposure. CONCLUSION OF LAW Bilateral hearing loss was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection for bilateral hearing loss. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Analysis The Veteran contends that service connection is warranted for bilateral hearing loss disability because it is related to his exposure to noise from mortar and satchel charges when his base was attacked, engine noise from trucks in his convoy, mine explosions, and gunfire during active duty in Vietnam. Service treatment records are negative for any evidence of hearing loss during active duty and at the time of the Veteran's separation. However, the Veteran is competent to report noise exposure in service, and his service records, including his DD-214, show that he served in an infantryman regimen as an Ordinance Supply Specialist, and that he is in receipt of the M-14 Marksman Badge. Thus, the Board finds that the Veteran's reports of noise exposure are credible and consistent with the circumstances of his service, and the acoustic trauma is deemed to have occurred. See 38 U.S.C.A. § 1154 (a), (b) (West 2002); 38 C.F.R. § 3.304(d) (2013). The Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was afforded a VA audiology examination in July 2011. The Veteran reiterated his reports of noise exposure in service from trucks in the convoy he drove in, mortar and satchel charges, engine noise, mine explosions, and gunfire. He also reported occupational noise exposure while working in a factory for 7 years and as a carpenter for 25 years, but claimed to have worn ear muffs or earplugs when in the presence of excessive noise. The Veteran also reported bilateral tinnitus, which started during service in 1967, after he was exposed to mortar attacks. The examiner noted that service treatment records revealed that the Veteran had normal hearing sensitivity upon entrance and exit from the military. The examiner diagnosed mild to severe slightly asymmetrical sensorineural hearing loss, greater for the left ear. He opined that without evidence of hearing loss during service, and given significant occupational noise exposure, it is less likely than not that the Veteran's current hearing loss is related to military noise history. Although it is true that there is no evidence that the Veteran had hearing loss in service, the Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303(d) (2013). Furthermore, although the Veteran reported occupational noise exposure for over 25 years; he also reported that he used hearing protection during that time, unlike in service. The Board also notes that the examiner opined that it is as likely as not that the Veteran's reported tinnitus is related to his history of military noise exposure. However, he provided no explanation for why the Veteran's tinnitus would be related to his military noise exposure, but not his hearing loss. For these reasons, the Board finds that the July 2011's examiner's opinion lacks probative value. Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran has consistently reported in statements and on VA examination that he was exposed to noise from trucks in the convoy he drove in, mortar and satchel charges, engine noise, mine explosions, and gunfire, during active duty in Vietnam. Former military comrades of his have also reported in statements that they had first-hand knowledge of the Veteran being exposed to excessive noise during military service. Therefore, the Board finds the Veteran's reports credible. He has also provided competent evidence of a continuity of symptomatology. See March 2013 Travel Board hearing. Furthermore, although he reported noise exposure during post-service employment while working in a factory and as a carpenter, he also reported that he wore hearing protection as needed. There is evidence against the claim, inasmuch as the contemporaneous record does not document hearing loss for many years after active duty, and the July 2011 VA examiner provided an opinion against the claim. However, as noted above, the Board finds the July 2011 examiner's opinion to be lacking in probative value. Moreover, the evidence is in at least equipoise. Resolving reasonable doubt in the appellant's favor, the claim is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs