10-19 813 ( 2017 )

Citation Nr: 1725256
Decision Date: 06/19/17 Archive Date: 07/17/17
DOCKET NO. 10-19 813 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to service connection for hearing loss of the left ear.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from April 1974 to March 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA).
This matter was previously before the Board in November 2013, when it was remanded for additional evidentiary development. It has now been returned for further appellate review.
FINDING OF FACT
The competent medical evidence of record establishes that it is more likely than not that the Veteran's hearing loss of the left ear is the result of a head trauma he sustained during active service.
CONCLUSION OF LAW
The criteria for service connection for hearing loss of the left ear have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303(a), 3.385 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Given the fully favorable nature of this decision, any failures in the duty to notify or duty to assist are harmless error, as it has failed to result in any prejudice to the Veteran.
The Veteran contends that his current hearing loss of the left ear is the result of a trauma he sustained to the left side of his head due to an assault during active duty.
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; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); 38 C.F.R. § 3.303.
Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).
The evidence shows that the Veteran was afforded a VA audiology examination in January 2014. His hearing thresholds for the left ear were 50, 60, 55, 55, and
55 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. 1/29/2014 VBMS, C&P Exam, p. 1. This demonstrates a current hearing loss disability of the left ear as defined by 38 C.F.R. § 3.385 and the first criterion for service connection has been met.
A review of the Veteran's service treatment records is negative for hearing loss of the left ear. The Veteran answered "no" to history of hearing loss on a Report of Medical History obtained at his March 1975 discharge. The March 1975 discharge examination did not include a diagnosis of left ear hearing loss, although it should be noted that an audiological examination was not conducted. He did score 15/15 on the whispered voice test. 11/21/1975 VBMS, STR-Medical, pp. 9-12.
The Veteran's service treatment records are also negative for confirmation of a head injury. In fact, the Veteran answered "no" to a history of head injury on the March 1975 Report of Medical History. However, the Veteran has provided written statements that describe his assault, including the detail that he was injured on the left side of his head and ear. 6/28/2008 VBMS, VA 21-0781, Statement in Support of Claim for PTSD. In an October 2008 rating decision, it was determined that the service treatment and personnel records contain sufficient evidence of a sudden change in personality consistent with an assault, including a rapid loss of weight, a demotion, and an overdose of over the counter pain medication. Service connection for PTSD as a result of this assault has been established. The Board has reviewed the record and confirmed the incidents cited by this rating decision. Based on this prior finding as just confirmed, the Board finds that the criterion of in-service incurrence of an injury has been met.
The final criterion required to establish service connection is that of a nexus between the current hearing loss of the left ear and the injury sustained during service. The January 2014 VA examiner stated that as an audiologist, he was not qualified to provide an opinion for this type of hearing loss. He recommended that an opinion be obtained from an otolaryngologist.
Consequently, the Board sought an opinion from a VA otolaryngologist. The opinion was received from a board certified otolaryngologist in October 2016. This doctor noted that the nature of the Veteran's hearing thresholds suggested that his hearing loss of the left ear was due to an underlying deficiency of the otologic system in all frequencies, and not due to noise trauma. He opined that there is a greater possibility that the Veteran's hearing loss was due to the trauma to the left side of his head than not. The Board notes that the record does not include any opinion to the contrary.
Therefore, the Board finds that a nexus between the Veteran's in-service injury to the left side of his head and his current hearing loss of the left ear has been established. The final criterion has been met, and entitlement to service connection for hearing loss of the left ear is established.
ORDER
Entitlement to service connection for hearing loss of the left ear is granted.
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Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs