Citation Nr: 1542082	
Decision Date: 09/29/15    Archive Date: 10/05/15

DOCKET NO.  11-20 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T.Ojo, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1963 to September 1966.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, TX.

This appeal was processed using the Virtual VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should include review of this electronic record.


FINDINGS OF FACT

Resolving all doubt in the Veteran's favor, the currently demonstrated bilateral hearing loss was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's active duty service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110.  With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

For the purposes 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 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz 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 Veteran was afforded a VA examination in April 2009.  The VA examination puretone thresholds, in decibels, were interpreted as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
40
40
45
55
LEFT
50
50
55
80
85

The Veteran meets the requirements for hearing loss under 38 C.F.R. § 3.385 and therefore has a current disability as required by 38 C.F.R. § 3.303.  

The Veteran served on the USS Kitty Hawk as an Ordinance Specialist. He contends that he was exposed to constant gunfire and jet engine noise during his active duty service. He was assigned to the flight deck and was present during the launching and recovery of the F4 Phantom jets and other jet aircrafts assigned to the carrier. He worked the fore and aft catapults under the jets just prior to the launching of arming bombs, rockets and missiles. The Veteran contends that ear protection during this time was inadequate and believes that this in-service noise exposure caused his current hearing loss.

The evidence regarding medical nexus consists of a VA examiner's statement in a April 2009  audiology examination report which stated that the Veteran's hearing loss was not at least as likely as not caused by or the result of his military service because the Veteran's hearing was within normal limits in both ears upon enlistment and separation from the service.

In Hensley, the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and a current hearing loss disability.  Hensley Brown, 5 Vet. App. 155, 157 (1993).

The Veteran contends, as noted in his NOD and VA-9 that he had significant noise exposure during active duty service while working as an ordinance specialist on the USS Kitty Hawk.  The Veteran is competent and credible to report the circumstances of his service, and there is no evidence which contradicts his report. 

Further development of the claims could be undertaken so as to obtain the additional private medical opinion clarifying the etiology of the Veteran's hearing loss.  Nonetheless, the Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  He is without a doubt competent to report that he suffered acoustic trauma during service.  See generally Charles v. Principi, 16 Vet. App 370, 374 (2002).  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.

The Board finds that the Veteran's testimony that his diagnosed hearing loss disability is related to his in-service injury has some tendency to make a nexus more likely than it would be without such an assertion.  See Lynch v. Ne. Reg'l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir. 2012) ("[E]xpert testimony may be necessary where some special expertise is necessary to draw a causal inference because of its esoteric nature, but that in general the causal sequence can be inferred from circumstantial evidence, expert testimony, or common knowledge."); Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695-96 (1st Cir. 1987) (expert testimony not required if the connection between the negligence and the injury is fairly self-evident, such as that a broken leg would result from being struck by a motor vehicle).

As noted above, the Veteran's NOD and VA-9 noted that the Veteran was exposed to constant gunfire and jet engine noise throughout his tour of duty in Vietnam.  The Veteran was awarded the Vietnam Service Medal and the National Defense Service Medal for his service in Vietnam, he is competent and credible to report the circumstances of his service, and there is no evidence which contradicts his report.  

In light of the above, the Board finds the following evidence should be afforded the greatest amount of weight:  (1) the Veteran's medical evidence of a current disability, (2) his documented exposure to in-service acoustic trauma, (3) the lack of any evidence of an intervening event, and (4) his competent and credible history of relevant symptoms since service discharge.  Given the absence of any intervening injury, the evidence tends to show that the current condition is at least as likely as not caused by the acoustic trauma he suffered in service.

In light of the above, the Board finds the evidence is at least in equipoise, with regard to the Veteran's bilateral hearing loss being related to his active duty service.  Given the above stated facts, the evidence tends to show that the current condition is at least as likely as not related to the Veteran's noise exposure during active duty service.  

Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss has been established.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is granted.  



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs