Citation Nr: 1606712 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 09-31 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1963 to June 1966. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for bilateral hearing loss. A claim for service connection for an "ear condition" was received on June 7, 1971. The agency of original jurisdiction (AOJ) did not issue a rating decision with respect to the service connection claim at that time. The Veteran filed another "claim" for service connection for a "bilateral hearing condition" that was received in February 1989. In a May 1989 rating decision, the RO, in pertinent part, denied service connection for otitis externa (an inflammation of the outer ear and ear canal). While noting that the Veteran was being treated for decreased hearing in both ears, the RO did not address the issue of service connection for bilateral hearing loss in the May 1989 rating decision. When determining the scope of an appeal, the Board has an obligation to broadly construe a claimant's description of the underlying claim, the symptoms he or she describes, and the information he or she submits in support of that claim. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)) (the Board is required to "fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). The Board finds that the June 1971 claim for service connection for an "ear condition," in context of the February 1989 claim for service connection for a "bilateral hearing condition," can liberally be construed to encompass a claim for service connection for bilateral hearing loss; therefore, the appeal period for the issue of service connection for bilateral hearing loss stems from the June 1971 original claim for service connection. As discussed below, the Board is granting service connection for bilateral hearing loss based on continuous post-service symptoms of bilateral hearing loss under 38 C.F.R. § 3.303(b) (2015). As such, the effective date for the grant of service connection for bilateral hearing loss will be June 7, 1971 (the day the service connection claim for an "ear condition" was received by VA). See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015) (except as specifically provided, the effective date of an evaluation and award for compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later). In October 2013, the Board remanded the issue on appeal for additional development. As discussed in detail below, the Board is granting service connection for bilateral hearing loss, constituting a full grant of the benefit sought on appeal; therefore, any discussion with regard to compliance with the Board's remand instructions is rendered moot. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. Symptoms of the currently diagnosed bilateral sensorineural hearing loss have been continuous since service. CONCLUSION OF LAW Resolving 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, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159. The Board is granting service connection for bilateral hearing loss, constituting a full grant of the benefit sought on appeal; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Service Connection for Bilateral Hearing Loss Under the relevant laws and regulations, 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; 38 C.F.R. § 3.303(a) (2015). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. For a chronic disease such as hearing loss, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including organic diseases of the nervous system, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 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 threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran essentially contends that he developed bilateral hearing loss during service due to in-service exposure to acoustic trauma, which hearing loss has continued since service separation. Specifically, the Veteran states that he experienced acoustic trauma during service from mortar and artillery fire as a mortarman in combat. The Veteran contends that the hearing loss has continued since the in-service combat experience. See February and March 2008 written statements. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes. At the April 2008 VA examination, audiometric testing showed hearing loss disability in both ears as defined by VA regulations. See 38 C.F.R. § 3.385. Next, the Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran reported that he was exposed to acoustic trauma from in-service noise exposure from mortars and artillery fire during combat service. See April 2008 VA examination report. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Further, the service personnel records note that the Veteran has been awarded the Combat Infantry Badge and Purple Heart (awarded to those wounded or killed during service in the U.S. Armed Forces). As such, the Board finds the Veteran's contentions with regard to in-service acoustic trauma due to combat to be consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b) (West 2014). The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, 5 Vet. App. at 159 (holding that service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that his hearing diminished during service and continued to worsen since service separation. Service treatment records do not contain any complaints, symptoms, diagnoses or treatment attributed to hearing loss. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Throughout the course of this appeal, the Veteran has consistently contended that his hearing loss began during service and continued to worsen since service separation. In February and March 2008 written statements, the Veteran reported that the hearing loss had continued since the in-service exposure to mortar and artillery fire during combat. The Board finds that the Veteran has provided credible statements as well as lay histories provided to medical personnel that his hearing loss symptoms have been continuous since service. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). A January 2008 VA treatment record notes that the Veteran reported hearing loss since service. See also November 1988 VA treatment record (noting decreased hearing in both ears), January 1989 VA treatment record (noting ear problems for many years). Audiometric testing post-service demonstrate that the Veteran's hearing acuity continued to decline after service separation. In an April 2008 VA examination report, the VA examiner opined that it was less likely as not that the Veteran's hearing loss was caused by or a result of service because the separation audiogram "was not clear but seems to indicate normal hearing, bilaterally." In a November 2013 VA medical opinion report, the VA examiner opined that the Veteran's hearing loss is less likely as not due to or caused by service because his hearing was normal at service separation in June 1966. The November 2013 VA examiner noted that the Institutes of Medicine (IOM) concluded that there was no sufficient basis for the existence of delayed-onset hearing loss based on the current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss. The April 2008 VA examination report and November 2013 VA medical opinion report are based, in large part, on the lack of documented hearing loss on the June 1966 service separation physical examination report; however, service connection is not precluded for hearing loss which first met VA's definition of disability at 38 C.F.R. § 3.385 after service. See Hensley at 159; see also 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). Further, neither VA examiner addressed the Veteran's competent lay statements with regard to in-service noise exposure including from mortars, artillery, and other weapons. See Bennett, 10 Vet. App. 178. As such, the Board accords the April 2008 VA examination report and November 2013 VA medical opinion report low probative weight. The Board finds the Veteran's assertions of the onset of bilateral hearing loss during service and his reports of bilateral hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma, and current diagnoses, are sufficient to place in equipoise the question of whether the current bilateral hearing loss was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, based on continuous post-service symptoms of bilateral hearing loss, presumptive service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss, effective June 7, 1971, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs