Citation Nr: 1510202	
Decision Date: 03/11/15    Archive Date: 03/24/15

DOCKET NO.  10-30 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel



INTRODUCTION

The Veteran served on active duty from November 1955 to June 1959, and from August 1959 to August 1967, with additional reserve service.

This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the RO in Denver, Colorado that in pertinent part, reopened a previously denied claim for service connection for bilateral hearing loss, and then denied that claim.

This case was previously before the Board in November 2013, at which time the Board found that new and material evidence had been received to reopen the service connection claim for bilateral hearing loss and remanded the matter so that a VA examination could be provided.  Thereafter, the Board remanded the claim again in July 2014 finding that the previous opinions provided were inadequate.  A supplemental opinion was provided in August 2014.  The case is now returned for appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss was incurred in service. 


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2014).



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants service connection for bilateral hearing loss.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for some disorders, including organic diseases of the nervous system, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2014).   

For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz 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 United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran seeks service connection for bilateral hearing loss related to exposure to acoustic trauma in service.  The Veteran's DD Forms 214 reflect that he had active service in the Navy from 1955 to 1967, and his primary military occupational specialty (MOS) was that of an electrical inspector.  He has stated that he worked on the flight deck of an aircraft carrier and was exposed to the noise from aircraft engines, and also was exposed to noise from five-inch Navy ship guns.  Records reflect that he also had additional reserve service.

The service treatment records show that while he did not have a diagnosis of hearing loss for VA purposes in service, he did have some degree of hearing loss shown in both ears, and was actually diagnosed with right ear high frequency hearing loss during his active duty service and bilateral high frequency hearing loss during his subsequent reserve service.  

VA audiometric readings prior to June 30, 1966, and service department readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) - American National Standards Institute (ANSI). In the paragraph below, ASA units appear to the right and in parentheses, whereas ISO-ANSI units appear to the left.

A September 1964 audio evaluation showed right ear decibel thresholds of 20 (5), 15 (5), 15 (5), 15 (5), 20 (15) and 20 (10) and left ear decibel thresholds of 20 (5), 15 (5), 15 (5), 25 (15), 30 (25), and 35 (25) at the respective frequencies of 500, 1000, 2000, 3000, 4000, and 6000 hertz.

A June 1967 extension examination included an audiogram, which showed right ear decibel thresholds of 10 (-5), 5 (-5), 0 (-10), 5 (-5), 10 (5), and 35 (25) and left ear decibel thresholds of 10 (-5), 0 (-10), 5 (-5), 10 (5), 20 (15), and 15 (5) at the respective frequencies of 500, 1000, 2000, 3,000, 4,000, and 6,000 hertz.  The diagnosis was right ear high frequency hearing loss, not considered disqualifying.

The same audiometric findings were noted on testing on discharge in July 1967. 

Annual examinations as part of the Veteran's reserves service also were provided dated from September 1968 to September 1979, which note diagnoses of high frequency hearing loss diagnoses in both ears.  See e.g., October 1975 re-enlistment examination; July 1977 annual audio examination.

Thus, the record shows that the Veteran had some degree of hearing loss during his military service.  The opinions addressing the Veteran's hearing loss claim have essentially been based on the lack of hearing loss disability in service.  This is an inaccurate factual premise, because there was some degree of hearing loss shown in service.  Also, the lack of a hearing loss disability diagnosed in service is not fatal to the Veteran's claim.  In addition, the evidence reflects that the Veteran has stated that he had hearing difficulty which began in service and worsened over the years.  He is competent to say he has had difficulty hearing for years.  The Board finds that his statements are both competent and credible. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013).  However, sensorineural hearing loss, as an organic disease of the nervous system, is such a chronic condition under 38 C.F.R. § 3.309(a) . 

Moreover, the Veteran has reported that his only exposure to excessive noise was during service.  He has stated that after service, he was in college and worked in civil service (suggesting that he had no loud noise exposure).  He denied post-service noise exposure at his VA examination.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion).  See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records (service treatment records, etc.)).

Even though there is no probative opinion of record addressing the etiology of the Veteran's hearing loss, the Board considers it significant that the Veteran was initially diagnosed with bilateral hearing loss in service.  Moreover, he has since undergone clinical testing that establishes a current diagnosis of bilateral hearing loss in support of his service connection claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that, in a claim for service connection, the requirement of a 'current disability' is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal).  

Where, the record contains both in-service and post-service diagnoses of a chronic disorder (sensorineural hearing loss), no medical opinion as to etiology is necessary to grant service connection.  See Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008).  Thus, to the extent that the Veteran's hearing loss in service may arguably be considered "chronic" in service, even without a probative medical opinion relating the Veteran's currently diagnosed bilateral hearing loss to his military service, the Board finds that the evidence weighs in favor of his claim.  Moreover, to the extent that "chronicity" arguably may not have been established in service, the Board considers the Veteran's assertions of a continuity of hearing loss symptomatology since service to be credible in the absence of any probative evidence expressly negating those assertions.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).

The medical evidence establishes that the Veteran was diagnosed with hearing loss in service, has complained of hearing loss since service, and is currently diagnosed with bilateral hearing loss.  Moreover, the Board observes that the Veteran has attested to his long-term hearing loss, which, as a lay person, he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay evidence can be competent to establish diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms supports a later diagnosis by a medical professional).  

When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (holding that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.").  Because there is a medical finding of bilateral hearing loss in service and thereafter, and credible supporting evidence of hearing loss disorder in the ears since service, the Board concludes that the evidence supports the grant of service connection for bilateral hearing loss.  Thus, 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.  Therefore, the Veteran's claim for service connection for bilateral hearing loss is granted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs