Citation Nr: 1754055 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-09 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 1968 to August 1970. The Veteran is a recipient of the Bronze Star Medal with a V device as well as the Vietnam Service Medal with 2 Bronze Service Stars. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the Veteran testified before the undersigned Veterans Law Judge in August 2017. A transcript of that hearing has been associated with the claims file. FINDING OF FACT Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his service connection claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is not necessary. II. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, for certain diseases designated as chronic, medical nexus may be presumed under certain circumstances. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). For hearing loss claims, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Finally, organic diseases of the nervous system, such as sensorineural hearing loss, are considered chronic diseases within the parameters of 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015); VA M-21-1 Adjudication Procedure Manual, Part III., subpart iv., ch. 4, sec. B.2.c. Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's June 2010 VA examination results are consistent with impaired hearing disability as defined by 38 C.F.R. § 3.385. Additionally, the Veteran has provided significant lay testimony with regard to his service in the Republic of Vietnam as a cannoneer, during which he routinely participated in fire missions to support infantry, and did so without hearing protection. The Veteran's personnel records corroborate his lay statements; the Veteran's military occupational specialty was cannoneer, he completed one year of active duty service in the Republic of Vietnam with the United States Army, and as stated above, he was a recipient of the Bronze Star Medal with a V device. June 1970 service treatment records document audiometric results consistent with normal hearing acuity; however, the Veteran's pre-induction examination does not contain any audiometric test results, so it is not possible to determine whether any auditory threshold shifts occurred during active duty service. In this regard, the Board notes that the Veteran disputed the fact that he underwent audiometric testing upon separation from active duty service in his March 2014 formal appeal. A negative etiology opinion was provided by the June 2010 VA examiner based on the Veteran's June 1970 hearing acuity results. The Veteran was later service connected for tinnitus. Additionally, the Veteran, his wife, and his son have all provided lay statements regarding the Veteran's hearing loss symptoms since his separation from active duty service. In particular, the Veteran provided August 2017 hearing testimony that he first noticed that it was difficult to hear a couple months into his Vietnam service, and that even when his section was not firing Howitzer cannons, other sections would fire up, and that his bunkers were right next to the cannons. The Veteran explained that it was difficult to hear the entire time he was there. Additionally, the Veteran's wife who testified that she had known the Veteran for 52 years and was married to him during his active duty service, explained that the Veteran had wrote to her about how loud his artillery unit was and how you had to scream to be heard. She also stated that when the Veteran was posted for rest and relaxation in Hawaii for one week during his active duty service, she went to meet up with him there, and that she noticed a difference in his hearing capabilities, specifically that he would yell when she was talking to him, and that he had to lean halfway across the table to hear her at restaurants. She also reported that the Veteran has always turned the radio and television up very loud and that as her children were growing up, she and her children would joke that they would go deaf because of the high volume. She added that her children had to stand in front of him to have a conversation with him, not to the side or behind him. Additionally, the Veteran acknowledged working 26 years as a tool and die maker, but noted that it was company policy that he had to wear hearing protection and safety glasses, and that he had no other post-service civilian work experience. Given the Veteran's hearing loss diagnosis and his competent and credible lay statements and corroborating personnel records establishing in-service noise exposure, the Board finds that the first two elements of service connection are met. Additionally, although contemporaneous medical records documenting an initial diagnosis of hearing loss in service is unavailable, the Board finds that the Veteran's, his wife's, and his son's lay statements provide competent and credible lay evidence of continuity of symptoms, and notes that there is no contradictory evidence with regard to auditory threshold shifts. Accordingly, the Board finds that the Veteran must be afforded the benefit of the doubt, and finds that an award of service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2017). ORDER Entitlement to service connection for bilateral hearing loss is granted. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs