Citation Nr: 1805443	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  12-13 376	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. Timbers, Associate Counsel


INTRODUCTION

The Veteran served as a member of the United States Army, with active duty service from August 1968 through August 1970. 

This appeal comes to the Board of Veterans' Appeals ("Board") from a July 2010 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida (hereinafter Agency of Original Jurisdiction ("AOJ")).

In September 2015, the Veteran appeared and testified before the undersigned Veterans Law Judge, at a Travel Board hearing, held at the RO.  The Veteran's wife additionally appeared and provided testimony.  A transcript of this hearing has been reviewed and associated with the Veteran's claims file.

The Veteran's appeal has previously been before the Board.  In January 2016, the Board denied the Veteran's claim for entitlement to service connection for a bilateral hearing loss disability.  Thereafter, the Veteran appealed this denial to the Court of Appeals for Veterans Claims ("CAVC/Court").  In a September 2016 Joint Motion for Partial Remand ("JMPR") the Court vacated the Board's denial and remanded the claim back to the Board for further consideration.  Specifically, the parties to the JMPR found the Board erred when it did not provide adequate reasons and bases for the determination that the Veteran's reports of continuous symptoms of hearing loss since the time of his separation were not fully credible.  

Following the September 2016 JMPR, the Veteran's claim was returned to the Board.  At that time, the Board determined a remand was required in order to comply with the findings of the September 2016 JMPR.  Therefore, in May 2017, the Board remanded the Veteran's claim for entitlement to service connection for a bilateral hearing loss disability and directed the AOJ to obtain an addendum medical opinion which assessed the etiology of the Veteran's bilateral hearing loss disability.  Additionally, the AOJ was instructed to obtain the Veteran's updated VA treatment records.  A review of the claims file indicates that an addendum medical opinion was obtained in May 2017 and that the Veteran's VA treatment records have been obtained and associated with the claims file.  As such, the Board finds that the AOJ has substantially complied with the May 2017 remand directives and that the matter has been properly returned to the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal was processed using Virtual VA and the Veterans Benefits Management System ("VBMS").  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.


FINDING OF FACT

The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is the result of hazardous noise exposure during his active duty service.


CONCLUSION OF LAW

After resolving the benefit of doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability has been met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act ("VCAA") must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016).
In regards to the Veteran's claims for entitlement to service connection, the Board notes that the VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him, in correspondence dated February 2010 and April 2012.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claim.  The Veteran also was informed of when and where to send the evidence.  After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Additional notice of the five elements of a service-connection claim was provided in the February 2010 VCAA notice, as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board.  It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  This includes updated VA treatment records requested in the Board's May 2017 remand.  See Stegall, 11 Vet. App. 268 at 271.

The Veteran has been provided with a VA examination and medical opinion, which addressed the Veteran's reported symptoms, frequency, and severity and the interference these symptoms cause in his ability to complete basic daily tasks.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In response to the Board's May 2017 remand, the AOJ obtained an addendum medical opinion which addressed the etiology of the Veteran's bilateral hearing loss disability.  See Stegall, 11 Vet. App. 268 at 271.  The Board finds the May 2017 addendum medical opinion is adequate for rating purposes and an additional examination is not necessary regarding the claim adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  
The Veteran was afforded the opportunity to appear and testify before the undersigned Veterans Law Judge ("VLJ") at a Travel Board hearing, held at the RO, in 2015.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge ("VLJ") who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that was lacking to substantiate the claims for benefits.  The VLJ specifically noted the issues as including the issues listed on the title page of this decision.  The Veteran was assisted at the hearing by an accredited representative from Veterans of Foreign Wars of the United States.  The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

Based upon the above, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.  Moreover, the neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist since the date of the Board's May 2017 remand.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

Lastly, the Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

General Laws and Regulations Governing Entitlement to Service Connection:

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

VA regulations recognize an additional, alternative, method of entitlement to service connection for certain chronic diseases.  Specifically, if the evidence of record reveals the Veteran has a current diagnosis that was chronic in service, or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter.  38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  However, in Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)).

As applied to the Veteran's instant appeal, the Board notes that sensorineural hearing loss is enumerated as  "chronic" disabilities under 38 C.F.R. § 3.309(a).  As such, the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim for entitlement to service connection for a bilateral sensorineural hearing loss disability. 

In addition to the above described VA regulations, entitlement to service connection for impaired hearing is subject to additional VA regulations.  Specifically, a hearing impairment constitutes a disability for VA purposes when 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.  The Court has held that the "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value.  In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.  A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  For a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

That being the relevant, generalized law applicable to the Veteran's claim, the Board observes that the Veteran has a current bilateral hearing loss disability, under VA regulations.  See e.g. April 2010 Audiological Examination.  Therefore, the Board finds the Veteran has satisfied the first element of service connection, the existence of a current bilateral hearing loss disability.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The Board additionally finds that the Veteran was exposed to loud noises during his active duty service.  The Veteran's DD 214 reflects that his military occupational specialty ("MOS") was a military policeman.  The Department of Defense's Duty MOS Noise Exposure Listing qualifies this MOS as involving a "moderate" probability of hazardous noise exposure.  However, the Board notes the Veteran's DD 214 additionally reports the Veteran received training in "Light Weapons Infantry" and that he received the marksmanship badge for the M-14 rifle.  As such, the Board finds the Veteran was exposed to acoustic trauma, in the form of loud noises from weapons, during his active duty service. 

Therefore, the primary question before the Board is whether the Veteran's in-service noise exposure caused his current bilateral hearing loss disability.  Throughout his appeal, the Veteran asserts his current bilateral hearing loss was caused by his exposure to excessive noise during service, including gun fire noises.  As a lay person, the Veteran is competent to report what comes to him through his senses, such as experiencing difficulties hearing.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of sensorineural hearing loss.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Therefore, the Board must next evaluate the medical evidence, specifically the Veteran's service treatment records, to determine whether a nexus between his current bilateral hearing loss disability and his in-service noise exposure exists.  

The Veteran's service treatment records have been carefully reviewed and considered, but do not reflect he experienced any hearing loss during his active duty service.  Examinations from his enlistment and separation from service do not suggest the Veteran experienced hearing loss at the level considered a disability under VA regulations.  For example, in July 1968, prior to his entrance into active duty service, the Veteran was administered an audiological examination which revealed the following hearing acuity: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
10
X
10
LEFT
5
15
25
X
30

In reviewing these results, the Board observes that the Veteran was shown to have some degree of a left ear hearing loss prior to his entrance into active duty service.  As noted above, the Court has held that threshold levels of 26 or above reflect a hearing loss disability for VA purposes, and levels of 20 decibels indicate some degree of hearing loss.  38 C.F.R. § 3.385; Hensley at 157.  Therefore, the results of this audiometric testing reflect the Veteran had some degree of hearing loss within his left ear prior to his entrance into active duty service, but that he did not have a left ear hearing loss disability for VA purposes.  

The Board is aware that the Veteran's service medical records contain an undated audiogram, which reported the Veteran's hearing acuity in graphical form.  Following a closer inspection of this audiogram, the Board determines that it is substantially similar to the Veteran's July 1968 audiological examination.  See Kelly v. Brown, 7 Vet. App. 471 (1995).  Specifically, the Board has reviewed the graphical findings of the audiological report and has determined that the results are as follows, with pure tone thresholds in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
30
10
X
10
LEFT
5
15
25
X
30
In reviewing the results of this undated audiological examination, the Board notes that the Veteran was shown to have some degree of hearing loss in the right ear, at 1000 Hertz, in addition to the above described left ear hearing loss. 38 C.F.R. § 3.385; Hensley at 157.  However, once again, the Board emphasizes that neither this undated audiological examination nor the July 1968 entrance examination, indicate that the Veteran experienced a hearing loss disability for VA purposes. 

The Veteran was administered a subsequent audiological examination in July 1970 which appears to show normal hearing acuity bilaterally: 




HERTZ



500
1000
2000
3000
4000
RIGHT
(+) 10
0
(-) 5
X
10
LEFT
(-) 5
(-) 5
0
X
0

The Board observes that the July 1970 audiological examination reported findings with the pre-fixes of (+) and (-) in front of each threshold; however, these notations were not explained by the examiner.  Based upon the Board's review of the Veteran's service medical records, the Board finds no evidence which establishes that the Veteran experienced a bilateral hearing loss disability during his active duty service.  

Despite the absence of a bilateral hearing loss disability, under VA law, the Court has held section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service.  See Hensley, 5 Vet. App. at 157; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  In this regard, the Board notes that the Veteran's post-service medical records show he was treated for symptoms of hearing loss and that he has been subsequently diagnosed with a bilateral sensorineural hearing loss disability.  See e.g. April 2010 Audiological Examination. 

Turning next to evidence of a favorable nexus between the Veteran's current bilateral hearing loss disability and the acoustic trauma sustained during his active duty service, the Board concedes that the evidence contains two unfavorable medical opinions.  However, as will be explained in detail below, the Board finds these medical opinions are factually flawed, and therefore entitled to limited probative value.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (an opinion based upon an inaccurate factual premise has no probative value).

In May 2010, an addendum medical opinion was obtained wherein the examiner concluded that the Veteran's bilateral hearing loss disability was less likely than not related to his active duty service.  In support of this conclusion, the examiner provided two rationales.  First, the examiner cited to the Veteran's service medical records, which showed the Veteran had normal hearing bilaterally upon his separation from active duty service.  This rationale fails to consider VA regulations which, as referenced above, allow for an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service.  See Hensley, 5 Vet. App. at 157; see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007)(where the Court explained that VA was in error when the sole premise of the examiner's conclusions was the lack of notation or treatment for the claimed disability in service). 

As for his second rationale, the May 2010 examiner cited to a 2005 study published by the Institute of Medicine ("IOM"), which found "no scientific evidence" to support a delayed onset of noise induced hearing loss.  The Board finds the examiner's reliance on this particular summary to be questionable. Specifically, the Board sees that this IOM study also suggested "[i]t is possible however that an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure."  (NATIONAL RESEARCH COUNCIL, NOISE AND MILITARY SERVICE: IMPLICATIONS FOR HEARING LOSS AND TINNITUS 47 (The National Academies Press 2005); See 38 C.F.R. § 19.9 (d)(5)(where Board is permitted to supplement the record with any recognized medical treatise without the necessity for a remand or referral, especially if it weighs in favor to the veteran).  The Board finds this description fits with the veteran's lay reports of worsening hearing developing after his active duty service.  See e.g. September 2015 Testimony.  

A second addendum medical opinion was obtained in May 2017.  Based upon the examiner's review of the Veteran's medical records, including the April 2010 audiological examination, the examiner concluded the Veteran's current bilateral hearing loss disability was less likely than not related to his active duty service.  In support of this conclusion, the examiner explained that the Veteran's current bilateral hearing loss disability did not match the standard presentation of noise induced sensorineural hearing loss.  Citing to a medical treatise, the examiner explained that noise-induced sensorineural hearing loss is typically greatest in the highest frequencies and least evident in the lower frequencies, often with a reasonably sharp transitional region between the affected and unaffected frequency regions.  In contrast, the examiner reported the Veteran's audiological evaluations reveal a bilateral, gradually sloping sensorineural hearing loss at all frequencies. 

However, the Board finds the examiner's rationale to be unsupported by the Veteran's audiological examinations.  For example, audiometric testing was conducted at the April 2010 VA examination, and the results are summarized in the chart below, with pure tone thresholds in decibels:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
50
50
65
LEFT
35
50
45
50
75

As depicted by the chart above, the Veteran's hearing acuity is worse at higher frequencies (i.e. at 4000 hertz) than at lower frequencies.  Additionally, the Board observes that there appears to be a "sharp transition" between the lower frequencies to the higher.  For example, there is a threshold shift of 15 decibels in the right ear, and 25 decibels in the left ear, between the frequencies of 3000 and 4000 hertz.  To be clear, the Board is not making its own medical determination as to the significance of these threshold shifts, but is rather using the own rationale of the May 2017 examiner, who explicitly stated that any threshold shift above 10 decibels would be "significant." 

The Board's conclusion is further supported by the Veteran's VA treatment records.  In particular, an audiological evaluation was performed in October 2014.  Although the results were not specified, the interpreting clinician described the Veteran's hearing impairment as "within normal limits at 250 hertz, sloping from a mild to a profound sensorineural hearing loss" disability.  This description of the Veteran's hearing impairment appears to be substantially similar to "typical presentation" of noise induced hearing loss as described by the May 2017 examiner. 

As such, the Board finds that the Veteran's current bilateral hearing loss disability (identified as sensorineural hearing loss in the April 2010 VA examination) is of the type and configuration that is consistent with in-service noise exposure given the Veteran's post-service history of no documented noise exposure and the current diagnosis of recurrent tinnitus.  Sensorineural hearing loss is defined as "that due to a lesion in either the cochlea (sensory mechanism of the ear), the vestibulocochlear nerve, the central neural pathways, or a combination of these structures.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 836 (31st Ed. 2007).  

Finally, the Board finds the probative value of this May 2017 addendum medical opinion is entitled to limited probative value because it did not take into consideration the Veteran's lay reports of continuous symptoms.  The probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."  See Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995).  Thus, the examiner's failure to account for the Veteran's reports of continuous symptoms undermines the probative value of his opinion. 

The Board is thus left with two medical opinions which have been found to be factually flawed and entitled to limited probative value.  Additionally, the Board notes that the Veteran has not submitted a medical opinion which establishes any positive nexus between his current bilateral hearing loss disability and his in-service acoustic trauma.  However, as noted above, VA regulations recognize an additional, alternative, method of entitlement to service connection for certain chronic diseases.  38 C.F.R. § 3.309(a)).  As applied to the Veteran's instant appeal, the Board notes that sensorineural hearing loss is enumerated as  "chronic" disabilities under 38 C.F.R. § 3.309(a).  Therefore, in order to prevail in a claim for entitlement to service connection, the Veteran must demonstrate continuity of symptoms following his separation from active duty service.  

In this regard, the Board notes that the Veteran has consistently reported developing symptoms of bilateral hearing loss following his separation from active duty service.  Similarly, the Veteran's wife's provided testimony that the Veteran has experienced symptoms of hearing loss following his separation from active duty service.  See September 2015 Transcript.  As an example, the Veteran's wife testified that she has had to repeat things to the Veteran as he is unable to hear her and unable to understand what she is saying. 

Overall, the Board finds that the Veteran's statements regarding an onset of symptoms during his active duty service, and remaining continuous thereafter are credible.  Similarly, the Board finds the testimony of the Veteran's wife to be credible and entitled to probative value.  Moreover, the Board finds that the Veteran, and his wife, are competent to report that the Veteran experienced continuous symptoms of hearing loss following his separation from active duty service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  As such, the Board finds that the Veteran is competent to describe his symptoms as chronic and continuous, and has credibly provided evidence of a nexus between his current bilateral hearing loss disability and his in-service acoustic trauma.  See Falzone v. Brown, 8 Vet. App. 398, 403   (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition).

In light of the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that service connection for a bilateral hearing loss disability is warranted.  As discussed above, the Veteran has a current bilateral hearing loss disability which constitutes a disability under VA regulations.  See April 2010 VA Examination.  Throughout this appeal the Veteran has asserted that his exposure to loud noises during his active duty service caused his current bilateral hearing loss disability.  This in-service noise exposure is verified by the Veteran's DD 214, which states the Veteran's MOS was a policeman and that he received the marksmanship badge for the M-14 rifle.  The Veteran has additionally provided credible evidence establishing that he experienced continuous symptoms of hearing loss following his separation from active duty service.  Therefore, the Board finds the medical and lay evidence of record contains sufficient evidence to establish a nexus between the Veteran's current bilateral hearing loss disability and his in-service noise exposure. 

In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy.  Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense.  There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence.  The fact finding of the Board in this case is entitled to deference and is not clearly erroneous.  To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder.  Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.").  

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.  

In conclusion, after resolving all doubt in the Veteran's favor, the Board finds the evidence supports a grant of service connection for a bilateral hearing loss disability, as there is competent and credible evidence of both in-service noise exposure, and post-service bilateral hearing loss disability for VA compensation purposes, with no post-service intercurrent cause.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  


ORDER

Entitlement to service connection for the Veteran's bilateral hearing loss disability is granted, subject to the laws and regulations governing the award of monetary benefits. 




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs