Citation Nr: 1804974	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  17-00 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1964 to November 1966.

This matter is before the Board of Veterans Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

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).

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2017.  A transcript of that hearing is of record.


FINDINGS OF FACT

The competent and credible evidence of record reflects it is at least as likely as not the Veteran's current bilateral hearing loss disability developed as a result of his active service.


CONCLUSION OF LAW

The criteria for a grant of service connection for a bilateral hearing loss disability are met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

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, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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.  When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

In this case, the Board notes that the competent medical evidence, to include a January 2016 VA examination, reflects the Veteran has a current hearing loss disability as defined by 38 C.F.R. § 3.385.  The Veteran has contended, to include at his August 2017 hearing, that his hearing loss was due to in-service noise exposure, and provided details thereof.  Further, he has indicated that he developed recurrent hearing problems, including tinnitus, while on active duty.

Although competent medical evidence is required to determine whether a claimant has a hearing loss disability for VA purposes, the Board notes the Veteran is nevertheless competent to describe hearing problems.  Moreover, the Board finds his account of in-service noise exposure and recurrent hearing problems since service to be credible.  In addition, his account of recurrent hearing problems since active duty is consistent with the fact that service connection was established for tinnitus based upon similar contentions.

The Board acknowledges that the January 2016 VA examiner expressed an opinion against the Veteran's current hearing loss disability being etiologically related to service.  However, this appears to have been based primarily on the in-service audiometric findings, and it does not appear the examiner adequately took into consideration the Veteran's competent and credible testimony regarding recurrent hearing problems originating during active service.  As such, the Board must find this examination does not provide an adequate basis to deny the claim.

The Board further notes that the law mandates resolving all reasonable doubt in favor of the Veteran, to include issues of service origin.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

In view of the foregoing, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran's current bilateral hearing loss disability developed as a result of his active service.  Therefore, service connection is warranted.  38 C.F.R. § 3.303(a).


ORDER

Service connection for bilateral hearing loss disability is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs