Citation Nr: 1800244 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-35 057 ) 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 Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1964 to January 1966, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's bilateral hearing loss is related to his service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist The Veteran's Claims Assistance Act (VCAA) requires the VA to provide notice and assistance to the appellant to substantiate his or her claim. However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for service connection. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), 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, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that his current hearing loss owes to his service, specifically to noise exposure experienced while serving as an infantryman in Vietnam. Service personnel records reflect that the Veteran served as a cannoneer in a howitzer artillery unit. Given this evidence, the Board finds the Veteran's assertions of in-service noise exposure credible and consistent with his service. 38 U.S.C.A. § 1154(a). The Veteran also carries a current diagnosis of bilateral hearing loss, confirmed at his August 2011 VA examination. Although that examiner concluded that the diagnosed hearing loss was unrelated to service, based on the lack of demonstrated hearing loss during service or at the Veteran's separation examination, the Board finds that conclusion problematic. Critically, the separation examination shows that a whisper test was conducted to determine the Veteran had not experienced hearing loss; that test has since been deemed invalid by VA, and is no longer used as part of VA examinations. As such, the Board finds the VA examiner's opinion wanting. Moreover, the record is bare of a convincing alternative provenance for the Veteran's demonstrated hearing loss. Hence, the preponderance of the evidence supports the notion that the Veteran's hearing loss relates to in-service hazardous noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. See Gilbert v. Derwinski, 1. Vet. App. 49 (1991). ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs