Citation Nr: 1645835	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  11-16 698	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for right ear hearing loss.


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

B. Lewis, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1974 to September 1978, from July 2008 to September 2009, and from September 2010 to August 2011. The Veteran was awarded, in pertinent part, the Combat Action Badge for his second and third periods of military service. 

The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied what was characterized as a claim for bilateral hearing loss. The Veteran filed a Notice of Disagreement (NOD) in July 2010. The RO issued a Statement of the Case (SOC) in May 2011. In June 2011, the Veteran filed his substantive appeal via VA Form 9. 
The RO issued a Supplemental SOC (SSOC) in July 2012.

In March 2014, the Veteran was afforded his requested Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. 

In September 2014, the Board remanded the Veteran's claim for entitlement to service connection for bilateral hearing loss for additional development. In October 2014 an addendum medical opinion was written and a private audiometric assessment was conducted. Based on this evidence, the RO issued a rating decision in January 2015 which granted service connection for left ear hearing loss and assigned a noncompensable (0 percent) rating, effective September 17, 2009, and denied service connection for right ear hearing loss. 

The Board notes that the Veteran was originally represented in this matter by Veterans of Foreign Wars of the United States, as reflected in a September 2009 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). However, in August 2016, the Veteran submitted a new VA Form 21-22, appointing Colorado Division of Veterans Affairs as his representative. The Board recognizes this change in representation and such is reflected on the title page of this decision.
The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. 

FINDINGS OF FACT

The record evidence is at least in relative equipoise as to whether the Veteran's right ear hearing loss disability, as defined by VA regulations, is causally linked to his exposure to hazardous levels of noise in service.


CONCLUSION OF LAW

Service connection for right ear hearing loss is established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).
In light of the Board's favorable decision to grant service connection for right ear hearing loss, no discussion of VA's duties to notify and assist is necessary for this issue. 

II. Service Connection

The Veteran seeks entitlement to service connection for right ear hearing loss. He asserts that his hearing loss is due to acoustic trauma that occurred during service. The Board notes that the Veteran has been granted service connection for left ear hearing loss.



Applicable Laws

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2015). In general, service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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. 

Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309.

"[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, supra, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81  (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 

Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, regarding the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

Facts

During the Veteran's first period of service from September 1974 to September 1978, the record reflects that no audiology exams were conducted. During this period the Veteran's military occupation specialty (MOS) was as a light infantryman. The Veteran testified at his hearing that his MOS involved being exposed to loud noises from arms fire and artillery fire on a regular basis without the benefit of hearing protection. 

The Veteran also had two subsequent periods of service from July 2008 to September 2009 and from September 2010 to August 2011. The Veteran is the recipient of the Combat Action Badge. Based upon this, the AOJ has conceded combat noise exposure. 

Following his second period of service from July 2008 to September 2009, the Veteran submitted a claim for bilateral hearing loss in September 2009. The Veteran was afforded a VA audiological examination in December 2009. On that date, puretone thresholds, in decibels, were as follows: 


HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
15
25
25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear. These results do not meet the definition of a right ear hearing impairment, as defined by VA regulations. 38 C.F.R. § 3.385.

The Board notes that the October 2014 addendum opinion bases its rationale on the puretone thresholds observed during the December 2009 VA audiological examination. 

In October 2014, the Veteran submitted a private audiological examination and opinion. The private audiogram reflects auditory threshold levels in the right ear as follows: 



HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
25
35
55

Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The private audiologist opined, in an October 2014 letter, that the Veteran had hearing within normal limits sloping to moderately-severe sensory-neural hearing loss in his right ear. These private clinical results show hearing impairment, and a hearing disability as defined by the VA. 38 C.F.R. § 3.385; see also Hensley, supra.

With respect to the October 2014 private audiological evaluation, the Board notes that only the graphic representation of the audiogram was included in the record, with no numeric interpretation provided. However, as the audiometric results were conveyed in a straightforward graph, the Board found that it, as the finder of fact, could interpret the chart to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471  (1995) (holding that the Court could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicating that the Board was empowered to make such factual findings in the first instance).

Analysis

Upon review, the Board finds, with the resolution of all reasonable doubt in the Veteran's favor, service connection for a right ear hearing loss disability is warranted.

In making this determination, the evidence demonstrates that the Veteran has a current right ear hearing disability within VA standards, diagnosed as right ear sensorineural hearing loss, as shown by his private audiological examination, with audiometric testing and speech recognition scores.

Service personnel records reflect that the Veteran served as an infantryman with exposure to arms fire. Given the Veteran's MOS, VA has conceded that the Veteran was exposed to hazardous levels of noise in service, to include combat noise exposure during the Veteran's service in Iraq from July 2008 to September 2009. The Veteran's accounts of diminished hearing from being exposed to hazardous levels of noise, when considered in tandem with his service personnel records, indicate that he encountered a situation that was consistent with the places, types, circumstances of his active service. See 38 U.S.C.A. § 1154 (a). 

The inquiry thus turns on whether there is a nexus between the Veteran's current right ear hearing disability, diagnosed as sensorineural hearing loss, and his in-service exposure to loud noise. See 38 C.F.R. § 3.303 (a); Shedden, 381 F.3d at 1166-67.

The nexus opinions of record are provided in the December 2009 VA examination report, the October 2014 medical addendum, and the October 2014 private audiological evaluation. The Board found the December 2009 opinion inadequate, with respect to the etiology of the Veteran's hearing disability, and remanded it for an addendum opinion in September 2014. In the resulting October 2014 addendum opinion, the VA examiner opined that it was at least as likely as not that the Veteran's hearing loss is due to military noise exposure. The AOJ granted service connection for left ear hearing loss based upon that opinion; however, the auditory threshold levels of that examination did not establish a hearing disability for VA purposes with respect to the right ear. The writer of the October 2014 private audiological evaluation opined that it was at least as likely as not that the Veteran's right ear hearing loss was caused by or contributed to by noise exposure during military service. Auditory threshold levels on that examination did establish a hearing disability for VA purposes; the Board notes that the October 2014 exam is the most recent exam of record. 

The other evidence of record suggesting a causal connection, or link, between the Veteran's right ear hearing disability and his in-service exposure to loud noise, is the Veteran's lay statements regarding a beginning onset of diminished hearing in service, and continuity of this same symptomology since service. The Court has held that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet App. 303, 307  (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (finding that a "categorical rejection and failure to analyze and weigh [an] appellant's lay evidence in accordance with established precedent renders" the Board's finding "legally unsupportable"). 

Here, the Veteran's lay statements regarding an in-service onset of diminished hearing and a continuation of the same to present, as discussed above, have been shown to be both competent and credible, despite the absence of such a showing noted in the service treatment records. While the Board may weigh a claimant's lay statements against the absence of contemporary medical evidence, it cannot determine that lay evidence lacks competence or credibility merely because it is unaccompanied by contemporaneous medical evidence. Id. Accordingly, because the Veteran's observations and complaints regarding his onset of diminished hearing and its continuity to his present diagnosis have remained consistent, and there is no substantial probative medical evidence suggesting otherwise, any benefit of the doubt is resolved in the Veteran's favor. 

On balance, the Veteran's current right ear hearing disability (diagnosed as sensorineural hearing loss), his substantiated in-service noise exposure, and his continuing observations of diminished hearing during and after service, which formed the basis for a private audiology examination that led to a finding of a right ear hearing disability within VA standards, are sufficient to support the nexus requirement through of showing of continuity of symptomatology in accordance with the court's ruling in Walker v. Shinseki, 708 F.3d at 1331; 38 C.F.R. § 3.303 (b). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board determines that service connection for a right ear hearing disability, diagnosed as sensorineural hearing loss, is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The appeal is granted.


ORDER

Entitlement to service connection for right ear hearing loss is granted.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs