190518-19140
190518-19140
| Board of Vet. App. | Sep 29, 2021Background
- Veteran served in the U.S. Army (Jun 1959–Jun 1962; Jul 1962–Jul 1968), MOS military policeman, with combat service in the Republic of Vietnam and conceded in-service hazardous noise exposure.
- STRs show no formal diagnosis of right-ear hearing loss at entry/separation, but a September 1962 reenlistment audiogram shows a 15 dB threshold shift at 4000 Hz relative to an April 1962 exam.
- July 1968 separation audiogram recorded large threshold readings later deemed testing errors by an ENT on retest; ENT results showed normal hearing at separation.
- Veteran reports noticing hearing difficulty in his early 20s (while in service) and continuous symptoms since then; he testified at a June 2021 Board hearing.
- VA examinations (Apr 2018 and Sep 2018 addendum) conceded hazardous noise exposure and left-ear nexus but opined no nexus for the right ear based on normal entrance/separation results; the examiner did not address the Sept 1962 15 dB shift.
- Board reviewed the record under the AMA Hearing docket, found the evidence in relative equipoise as to a nexus, afforded the Veteran the benefit of the doubt, and granted service connection for right ear hearing loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a current right-ear hearing disability | Audiograms and VA finding that right ear meets VA disability criteria | N/A (VA conceded right-ear hearing loss for VA purposes) | Right-ear hearing loss found to meet VA disability criteria (granted) |
| In-service event/exposure | Military policeman duties, qualifying/firing small arms and heavier weapons, combat in Vietnam produced hazardous noise | N/A (VA conceded hazardous noise exposure) | Board conceded in-service hazardous noise exposure |
| Nexus between current hearing loss and service | 15 dB threshold shift in Sept 1962, continuous symptoms since service, and grant of left-ear service connection support a nexus | VA examiner relied on normal ENT retest at separation and entrance/safety readings to deny nexus; did not address the 1962 15 dB shift | Evidence in relative equipoise; benefit of the doubt given to Veteran; nexus found and service connection granted |
| Adequacy of VA medical opinion | Veteran argues the 1962 threshold shift and testimony were not addressed by examiner, making examiner opinion incomplete | Examiner asserted July 1968 large shifts were testing errors and relied on ENT retest, concluding no permanent threshold shift | Board found examiner failed to address the 1962 15 dB shift for the right ear; thus examiner opinion was not dispositive and did not overcome lay and objective evidence |
Key Cases Cited
- Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (elements required to establish service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (chronic disease presumptions and continuity of symptomatology)
- Ledford v. Derwinski, 3 Vet. App. 87 (1992) (absence of in-service documentation of condition does not preclude service connection)
- Hensley v. Brown, 5 Vet. App. 155 (1993) (current hearing loss plus a medically sound basis linking it to service can support service connection)
- Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009) (application of the benefit-of-the-doubt/equipoise rule)
- Washington v. Nicholson, 19 Vet. App. 362 (2005) (competence and probative value of veteran's lay testimony)