Citation Nr: 1751082	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  13-08 488	)	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

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1963 to October 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In April 2016, the Veteran testified during a hearing before the undersigned by videoconference; a transcript of record.

In July 2016, the RO granted the entitlement to service connection for tinnitus.  This represents a total grant of benefits sought on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

In June 2016, the Board remanded the appeal for additional development.


FINDING OF FACT

The Veteran's bilateral hearing loss is the result of noise exposure during military service.



CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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).

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.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

An April 2011 VA examination report, demonstrates a current diagnosis of bilateral hearing loss as defined by VA.  38 C.F.R. § 3.385.  

The Veteran contends that his bilateral hearing loss is the result of in-service noise exposure related to his military occupational specialty as a rocket crewmember.  His duties involved being exposed to low flying aircraft, 105 and 155 Howitzers, bazookas, grenade blasts and M-16 caliber guns.  The Veteran's Form DD-214 lists his military occupation specialty as a rocket crewman.  Further, the Veteran asks the Board to note that during his active service, the Veteran often performed his duties without the benefit of hearing protection.  See April 2016 Hearing Transcript at page 8.  

The Veteran had in-service audiological evaluations upon entry and separation from service in both June 1963 and August 1965, at which time auditory thresholds were recorded.  The Veteran's audiometric test results do not indicate that he had hearing loss at either evaluation.  Further, the Veteran's in-service records are silent as to any complaints regarding hearing loss.  

The Veteran is competent to report the occurrence of in service noise exposure.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  His reports are consistent with the circumstances of his service.  Thus, the Board accepts the Veteran's reports of in service noise exposure while working as a rocket crewman as credible and consistent with the circumstances of his service, and finds that he was exposed to noise in service.  See 38 U.S.C.A. § 1154(a).  The second element for service connection has been met.  Therefore, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his in-service noise exposure.

In the Veteran's April 2011 VA Examination, the audiologist opined that the Veteran's bilateral hearing loss was less likely than not caused by his active service.  The rationale provided was that "hearing loss due to noise exposure is known to cause immediate (not delayed) damage, therefore hearing loss occurred after military noise exposure had ended and it is therefore my opinion that hearing loss is not caused by in-service noise exposure."  See April 2011 VA Audiological Examination at page 8.  This VA audiologist further provided a negative opinion with respect to the Veteran's tinnitus, concluding that tinnitus was related to the Veteran's non-service connected hearing loss.  This negative opinion for tinnitus, coupled with the Veteran's argument that new medical studies show there could be delayed onset hearing loss after noise exposure inspired a remand for a new medical opinion in the Board's June 2016 decision.

A new medical opinion was provided in July 2016.  This VA audiologist opined that the Veteran's tinnitus was at least as likely as not to have been caused by his in-service noise exposure because the Veteran first reported its onset in 1964.  However, the audiologist found the Veteran's bilateral hearing loss was less likely than not caused by his in service noise exposure due to normal hearing upon separation from active service and there being no reasonable basis for delayed onset hearing loss.  

In December 2016 the Board obtained an expert medical opinion from the Veterans Health Administration.  An otolaryngologist concluded that the Veteran's current hearing loss began during military service.  The otolaryngologist stated, "Although there was no hearing threshold shift from 1963 to 1965 the onset of tinnitus was correlated with cochlear hair cell damage.  Tinnitus and hearing loss are linked diagnoses, both caused by noise damage to the hair cell of the cochlea.  It logically follows that the tinnitus in 1964 indicated a damaged cochlea with hair cell destruction but because there is a redundancy of hair cells this damage would not be seen in the separation audiogram."  See December 2016 Private Otolaryngologist Medical Opinion.

The Board finds the December 2016, opinion to be most probative because of the expertise of the provider; the definitive nature of the opinion and the reasoning supporting its conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007).

As the most probative evidence supports a link between the current disability and service, service connection is granted.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; See Gilbert.






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ORDER

Service connection for bilateral hearing loss is granted.




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs