Citation Nr: 1804068 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-27 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from April 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veteran Affairs (VA) which denied service connection for bilateral hearing loss. In May 2017, the Veteran testified via videoconference, at the RO, before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is likely related to active military service. CONCLUSION OF LAW Bilateral hearing loss disability was incurred in active military service. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159, 3.326(a). However, as the Veteran's claim is being granted herein, discussion of whether VA satisfied the duties to notify and to assist is unnecessary. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing is considered 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 above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Under 38 U.S.C. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). The Veteran contends his hearing loss had an onset in 1966. He contends he developed hearing loss during active service as a result of noise exposure from the helicopter engine, the wind, and guns, in his duties as a crew chief and gunner on a helicopter gunship. He reported he had problems hearing during flights, and also noted hearing loss for a period of time after each flight in service. Service personnel records show that the Veteran's military occupational specialty (MOS) was helicopter mechanic. His awards included the Air Medal with "V" device (Eighth Oak Leaf Cluster), effective January 1967, which was awarded for his heroism while participating in an aerial flight in which he was "repeatedly exposed to intense hostile small arms and automatic weapons fire". Accordingly, his reported in-service acoustic trauma is conceded. See 38 U.S.C. § 1154(b) (2012) (noting that for combat Veterans, VA accepts satisfactory lay evidence of service incurrence if consistent with service circumstances and conditions). VA audiological testing conducted in January and November 2014 confirms that the Veteran does have bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Thus, there is sufficient evidence of a current disability. Regarding the question of whether the Veteran's current bilateral hearing loss disability is related to his in-service acoustic trauma, in January 2014 and November 2014, VA audiologists examined the Veteran; acknowledged his exposure to hazardous noise levels in service; noted the electronic hearing testing conducted in service showed that the Veteran did not have a significant threshold shift beyond normal variability while in service; and opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of noise exposure in service. As additional support for the opinion, the examiners cited a medical report from the National Academy of Sciences, Institute of Medicine, titled "Noise and Military Service - Implications for Hearing Loss and Tinnitus". The Board notes, however, that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service (38 C.F.R. § 3.385) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the Veteran's hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In light of the foregoing, the Board finds the VA examiners' opinions from January 2014 and November 2014 to be problematic because the examiners essentially based their opinions regarding hearing loss on the lack of in-service evidence of hearing loss. Thus, the Board finds the VA examiners' opinions regarding hearing loss to be of diminished probative value. The Board observes that hearing loss is subjective and the type of condition to which lay testimony is competent. In this regard, the Board finds the Veteran's assertions concerning in-service noise exposure and continuity of hearing loss symptomatology since service to be consistent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). It is plausible that the Veteran has suffered from bilateral hearing loss since his conceded noise exposure during active service. In view of the foregoing, including the Veteran's in-service duty assignment, the acknowledged in-service noise exposure, the current finding of bilateral hearing loss for VA purposes, as well as the diminished probative value of the January 2014 and November 2014 VA examiners' opinions regarding hearing loss, and resolving reasonable doubt in favor of the Veteran, the Board finds that his bilateral hearing loss is as likely as not causally related to noise exposure during active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs