Citation Nr: 1418054	
Decision Date: 04/22/14    Archive Date: 05/02/14

DOCKET NO.  10-15 972	)	DATE
	)
	)

On appeal from the
Department of Veterans (VA) Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel

INTRODUCTION

The Veteran is the appellant in the instant appeal.  He had active service from November 1965 to November 1967.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Portland, Oregon, Regional Office (RO) which, in pertinent part, denied service connection for bilateral hearing loss.  In March 2013, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO.  A hearing transcript was prepared and incorporated into the record.  The Board has reviewed the Veterans Benefit Management System (VBMS) and the "Virtual VA" files.  This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record.  


FINDINGS OF FACT

1.  The Veteran served as a flight line aircraft mechanic during active service.  

2.  Bilateral sensorineural hearing loss has been shown to have originated during active service


CONCLUSION OF LAW

Bilateral sensorineural hearing loss was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a), 3.385 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  

In this decision, the Board grants service connection for bilateral sensorineural hearing loss.  Therefore, no further discussion of VA's duties to notify and to assist is necessary.  


II.  Service Connection

The Veteran asserts that service connection for bilateral sensorineural hearing loss is warranted as the claimed disability was incurred as the result of his extensive in-service noise exposure as a flight line aircraft mechanic.  

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service.  38 U.S.C.A. § 1110; 38 C.F.R § 3.303(a).  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).  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 current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection for impaired hearing for VA purposes shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Regarding the element of current disability for hearing loss, the Court has held that the provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores are within the established limits.  Hensley v. Brown, 5 Vet. App. 155, 158 (1993) citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

The Board notes that the provisions of 38 C.F.R. § 3.303(b) are for application in this case as organic disease of the nervous system, including sensorineural hearing loss, is a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  

Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and an organic disease of the nervous system including sensorineural hearing loss becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

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.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Veteran's service treatment records do not refer to hearing loss disability.  His service personnel records state that he was an aircraft mechanic.  

At a June 2009 VA audiological evaluation, the Veteran complained of bilateral hearing loss and tinnitus.  He presented a history of in-service exposure to significant aircraft noise while performing his military duties as an aircraft mechanic and a flight line crew chief.  On audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
15
15
45
50
LEFT
15
25
50
55
65
Speech audiometry revealed bilateral speech recognition ability of 94 percent.  The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus.  The examiner opined that the "Veteran's hearing loss is not caused by or a result of his military service" and "test results at enlistment and exit are within normal limit with no significant difference between the two, Veteran's hearing loss is not related to his military service."  Service connection has been established for tinnitus associated with the Veteran's in-service noise exposure.  

A February 2013 audiological evaluation from the Providence Newberg Medical Center notes that the Veteran presented a history of significant in-service flight line noise exposure and hearing loss since active service.  He was diagnosed with bilateral sensorineural hearing loss.  The examiner clarified her diagnosis by stating "patient reports difficult hearing since his time in the Air Force."  

At the March 2013 Board hearing, the Veteran testified that he had been diagnosed with bilateral hearing loss by both VA and private audiologists.  He stated that the medical professionals had related his current bilateral hearing loss disability to his in-service aircraft-related noise exposure.  He credibly testified that he noticed hearing loss in service and indicated that he had significant noise exposure in service.  He also testified that after service he used hearing protection in jobs that may have included a noisy environment. 

Given the Veteran's significant in-service flight line noise exposure and his credible testimony and statements, and upon resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral sensorineural hearing loss is now warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102.  


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ORDER

Service connection for bilateral sensorineural hearing loss disability is granted.  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs