Citation Nr: 1752375	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  11-04 203	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for left ear hearing loss, claimed as an ear condition. 


REPRESENTATION

Appellant represented by:	Adam Neidenberg, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

K.M. Walker, Associate Counsel

INTRODUCTION

The Veteran had active service from February 2003 to January 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In January 2015, the Veteran testified at a video hearing before the undersigned Veterans Law Judge.  A transcript is of record.  

In a July 2015 decision, the Board reopened the Veteran's left ear hearing loss claim based on a finding of new and material evidence.  In that same decision, the Board remanded the case for further development.  It has returned to the Board for appellate review.


FINDING OF FACT

The Veteran has a current left ear hearing loss disability that is the result of noise exposure while in active service.


CONCLUSION OF LAW

The criteria for service connection for left ear hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2016).






REASONS AND BASES FOR FINDING AND CONCLUSION

Law and Analysis

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to 
service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2016).

For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  However, conductive hearing loss is not considered to be a chronic disease for VA compensation purposes.  In the absence of chronicity in service, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309 (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).  This regulation is inapplicable because the Veteran had conductive hearing loss.

VA must give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  38 U.S.C.A. § 1154(a) (West 2014).  The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the necessary nexus between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
Competent lay evidence means any evidence that does not require the proponent to have specialized education, training, or experience.  If provided by a person who has knowledge of the facts and conveys matters that can be observed and described by a layperson, the lay evidence is competent.  38 C.F.R. § 3.159 (a)(2) (2016).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2016); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay evidence can also be sufficiently competent evidence to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  Therefore, the Board must assess the competence and credibility of lay statements.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The threshold for normal hearing is from 0 to 20 decibels; higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For VA compensation purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 (2016).
In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for left ear hearing loss is warranted.  

The Veteran has reported difficulty hearing and battling hearing fatigue at times.  Further, he has asserted he began having hearing and ear problems due to noise exposure while in service.  The Veteran is considered to be competent to relate the history of noise exposure he experienced during service and his military personnel records confirm that he served as a combat engineer, which subjected him to noise from weapon discharge, explosions, and tank sounds.  The Veteran has consistently reported having hearing problems in his left ear.  There is no reason to doubt the credibility of his assertions.  Additionally, as discussed below, the Veteran now has current left ear hearing loss by VA standards.  See 38 C.F.R. § 3.385 (2016).  Thus, the remaining question is whether the Veteran's current left ear hearing loss is related to his military service.  

There is conflicting medical evidence in this case when it comes to the question of whether the Veteran's left ear hearing loss is related to his military service.  In this regard, the December 2006 VA examiner opined that it is at least as likely as not the Veteran's left ear hearing loss is caused by acoustic trauma that occurred during his military service.  The examiner supported the decision with quotations from medical literature, Merck Manual 17th Edition, Section 7, Chapter 85.  However, during the examination, although the Veteran was found to have left ear hearing loss it was not disabling by VA standards. The auditory threshold in all frequencies were less than 40 decibels, no thresholds in either frequency were 26 decibels or greater, and his speech recognition score was above 94 percent at 100 percent.

Likewise, in a May 2012 VA examination, the Veteran was found to have left ear hearing loss but not disabling for VA purposes.  That examiner opined the Veteran's hearing loss is at least as likely as not caused by his military service.  In the rationale, the examiner cited to Merck Manual 17th Edition, Section 7, Chapter 85 and detailed noise-induced hearing loss in young adults.  

The Board finds both the above opinions to be adequate and of high probative value as it relates to the link between the Veteran's left ear hearing loss and his military service.

On the other hand, the February 2017 examiner found that it was less likely than not the Veteran's left ear hearing loss was caused by his military service, finding it was inconsistent with hearing loss due to noise exposure.  Although not required and unlike the December 2006 and May 2012 examiners, the examiner provided no medical literature to support the opinion.  However, during the evaluation, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
15
10
LEFT
30
40
25
30
35

Speech audiometry revealed speech recognition ability of 100 percent in both ears.
These readings indicate the Veteran has disabling hearing loss for VA purposes.  See 38 C.F.R. § 3.385 (2016). 

For purposes of determining the severity of the Veteran's left ear hearing loss, the Board finds the above opinion to be adequate and have high probative value.

Then, there is some medical evidence that lacks an opinion which holds no probative value.  An October 2010 VA examination revealed the Veteran suffered from left ear hearing loss.  However, the report lacks an opinion.  The February 2012 VA examiner found the Veteran to have left ear hearing loss but could not determine the cause of the disability without resorting to mere speculation.  Thus, the opinion holds no weight.  

After weighing the evidence, the Board finds the competent, credible, and probative evidence weighs in favor of the claim.  The February 2017 VA examination has shown the Veteran to have a current disability of left ear hearing loss for VA purposes.  His lay statements regarding the onset of the disorder have been credible.  Lastly, the May 2012 VA examiner's nexus opinion is most probative as to the connection of the Veteran's left ear hearing loss to his service.  To the extent there is any reasonable doubt, it is resolved in the Veteran's favor.  Accordingly, the Board concludes that service connection is warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

ORDER

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



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs