Citation Nr: 1624236 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 10-47 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a hearing loss disability of the left ear. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1958 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. A May 2014 rating decision granted service connection for right ear hearing loss. Therefore, that claim has been resolved and is no longer on appeal before the Board. Where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The paperless record of Virtual VA and the Veterans Benefits Management System (VBMS) has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Left ear hearing loss disability is attributable to service. CONCLUSION OF LAW Left ear hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claim. Because today's order is favorable to the Veteran, further discussion of the VCAA is not necessary at this time. Service Connection Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This may be accomplished by affirmatively showing inception or aggravation during service. See 38 C.F.R. § 3.303(a) (2015). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system (sensorineural hearing loss), if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2015). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater or where the auditory thresholds for at least three of these frequencies are 26 dB or greater or when speech recognition scores are less than 94 percent. See 38 C.F.R. § 3.385 (2015). The Board finds that the weight of the evidence of record supports a finding of service connection for a left ear hearing loss disability. The Veteran meets the criteria under 38 C.F.R. § 3.385 for a hearing disability of the left ear. See report of May 2014 VA audiological examination. Evidence of record also indicates in-service noise exposure. The Veteran's military occupational specialty was radio operator and Morse Code interceptor. The Veteran also worked as a clerk on the flight line. See appellate brief of May 2016. The Veteran has given a credible account of his exposure to loud noise during service. See Veteran's statement of March 2010. In addition, a lay statement of someone who served with the Veteran also attests to the very loud noise to which they were exposed. See June 2010 statement of B. P. The Board finds that exposure to acoustic trauma in service is consistent with the circumstances of the Veteran's service. See 38 U.S.C. § 1154(a) (2015). Finally, the Veteran contends that he has had continual hearing problems dating from his noise exposure in service. See Veteran's statement of December 2010. His statements are competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The negative nexus opinions of VA audiological examinations of July 2008 and August 2008 are not adequate as they are based on a finding of normal hearing at separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding that, regardless of in-service test results, a claimant may establish entitlement to service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service). The audiologist who examined the Veteran in May 2014 did not provide a nexus opinion as to the Veteran's left ear hearing loss, stating only that "no possibility of threshold shifts were seen in the left ear" in the Veteran's service treatment records." To the extent that a negative nexus opinion is implied by the doctor's mere reference to the lack of a documented threshold shift in hearing during service, the opinion is inadequate and of no probative value. Id. The cause of the Veteran's left ear hearing loss disability was during service, and service connection is warranted. ORDER Service connection for a hearing loss disability of the left ear is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs