13-21 957 ( 2017 )

Citation Nr: 1725269
Decision Date: 06/21/17 Archive Date: 07/17/17
DOCKET NO. 13-21 957 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Entitlement to service connection for left ear hearing loss.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
A.Z., Counsel
INTRODUCTION
The Veteran served on active duty from April 1972 to April 1976.
This appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for bilateral hearing loss. The Veteran's claims file was subsequently transferred to the RO in Los Angeles, California, and that RO certified the Veteran's appeal to the Board in May 2014.
In May 2015, the Board remanded the appeal for further development. Subsequently, a June 2016 rating decision granted service connection for right ear hearing loss. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). However, as a June 2016 supplemental statement of the case continued to deny service connection for left ear hearing loss, such issue remains before the Board.
The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at an April 2015 Board videoconference hearing, and a transcript of the hearing has been associated with the claims file.
FINDING OF FACT
Left ear hearing loss is related to service.
CONCLUSION OF LAW
The criteria for service connection for left ear hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 3.385 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran contends that he suffers left ear hearing loss as a result of exposure to noise during service.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).
Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
"[L]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB 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, in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may 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. See 38 C.F.R. § 3.303 (d).
The Veteran has left ear hearing loss that is a disability for VA purposes, as shown in the February 2009 VA examination report.
Upon entry into service, the Veteran was not afforded hearing acuity test. Therefore, only whispered voice test results were provided. At separation, the Veteran was afforded a hearing acuity test, which the examiner that provided the February 2016 VA opinion concluded demonstrated normal hearing; therefore, she concluded that it would not be considered connected to service.
However, the Board finds that the opinion is inadequate, because the examiner did not take into account the fact that she was unable to determine whether the Veteran experienced a threshold shift during service, since only the whispered voice test was administered at entrance. As such, the Board cannot rely on it.
Given the Veteran's credible testimony regarding his in-service noise exposure and his reported hearing loss since that time, both of which he is competent to report, the Board finds that service connection is warranted for left ear hearing loss.
Thus, rather than remand for another opinion that addresses this matter, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current left ear hearing loss is related to his military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56.
ORDER
Service connection for left ear hearing loss disability is granted.
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R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs