Citation Nr: 1328690 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-25 803 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for right ear hearing loss disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1992 to August 1998. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a December 2005 rating decision issued by the Regional Office (RO) in St. Louis, Missouri The Board granted service connection for the Veteran's left ear hearing loss in September 2011 and remanded the issue of service connection for right ear hearing loss. The Board notes that the Veteran is already service connected for tinnitus as well. The Veteran testified at a hearing before the undersigned in February 2011 at the RO. FINDING OF FACT The evidence as to whether the Veteran's right ear hearing loss was caused by in-service noise exposure is in relative equipoise. CONCLUSION OF LAW Right ear hearing loss disability was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. Service connection The Veteran claims that he has a bilateral hearing loss disability as a result of exposure to loud noise in service. The Veteran is already service connected for left ear hearing loss and tinnitus. The most current audiometric test results of record show a current hearing loss disability in the right ear. The type of hearing loss is mild high frequency sensorineural hearing loss. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the purpose of applying the laws administered by the V.A., hearing impairment is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of these thresholds 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. However, the Court of Appeals for Veterans Claims (Court) has interpreted the threshold for normal hearing as between 0 and 20 decibels and indicated that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 5 Vet. App. at 160. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Walker, the Federal Circuit noted without extensive discussion that because the Veteran sought entitlement to service connection for bilateral hearing loss disability, a disease not listed as a chronic disease in the statute or regulation, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) were inapplicable. Id. at 1340. The Federal Circuit recently reaffirmed this view in an unpublished decision. See Jackson v. Principi, No. 2012-7179, 2013 WL 2461843, at *3-4 (Fed. Cir. June 10, 2013). VA policy, however, is to consider sensorineural hearing loss as an organic disease of the nervous system, which is one of the chronic diseases listed in the statute and regulation. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (sensorineural hearing loss is an organic disease of the nervous system). See also VA Adjudication Manual Rewrite, M21-1MR III.iv.4.B.12.a (June 5, 2012) ("Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a)"). The Board will therefore consider the Veteran's bilateral hearing loss disability to be a chronic disease until the conflict between the Federal Circuit's language and VA policy is specifically addressed by the Federal Circuit. The Veteran's service treatment records do not show a hearing loss disability in his right ear. However, while on the October 1991 entrance examination, the decibel level at 4000 Hertz was 20, the decibel level at 4000 Hertz was 25 in January 1998 and March 1998, indicating that there was some degree of hearing loss present, which had not been present at entrance, although the hearing loss was not disabling for VA purposes. A hearing loss disability in the left ear had already been shown in service, although the Veteran did not at that time report experiencing any hearing loss. The Veteran's DD214 shows his military specialty as watercraft engineer. In his February 2006 notice of disagreement he reported that he spent the majority of his time in service working in the engine room of vessels, which was a very loud environment. At a VA audiological examination in October 2005 the Veteran also reported that he worked around explosive ordinance for over a year while he was in the military. On his VA Form 9 dated in August 2007 the Veteran denied exposure to loud noise after service and stated that he was in college. Previously, he had told a VA examiner that he worked as a seismic engineer after service, but there was no indication whether this occupation involved exposure to hazardous noise. At his hearing in February 2011 he recounted his continual exposure to loud noise from shipboard engines in service as well as from over a year of training with explosive ordinance. He noted that he already had been service connected for tinnitus as a result of exposure to hazardous noise after a November 2007 examination. The Veteran testified that he believed that his hearing loss began around 1996 at the same time that his tinnitus started, and after returning from a deployment to Haiti. The Veteran's testimony as to in-service noise exposure is competent, credible, and supported by the evidence of record, including an October 1992 audiogram indicating that he was routinely exposed to hazardous noise. The Board also finds the Veteran's testimony as to continuity of symptomatology to be credible. The Veteran was afforded a VA audiological evaluation in October 2005 and the examiner opined that neither the Veteran's right or left ear hearing loss was caused by noise exposure in service because his hearing was normal at entrance and at discharge. She did not comment on the Veteran's hearing loss disability in the left ear shown earlier in 1998 or the Veteran's 25 decibel loss at 4000 Hertz in the right ear shown in January and March 1998. Thus, as noted in the Board's September 2011 decision, her opinion is of little probative value. The Board subsequently granted the Veteran's claim for left ear hearing loss based on the audiometric findings in service. In November 2011 a supplementary opinion was obtained concerning the etiology of the Veteran's right ear hearing loss. The VA audiologist opined that the Veteran's right ear hearing loss was not related to service because there was no significant shift in hearing thresholds in the right ear during the Veteran's service. However, she did not explain why the shift of 5 decibels, from what the Court considers to be normal hearing to what the Court considers to be abnormal hearing, was not considered significant. The November 2011 opinion is therefore of little, if any, probative value. Weighed against this opinion is the Veteran's competent, credible testimony as to in-service noise exposure and continuity of symptomatology, which were in part the basis for the grant of service connection for left ear hearing loss disability. As the November 2011 opinion is flawed and therefore of limited probative value, the Board finds that the evidence is in relative equipoise on the question of whether there is a nexus between current right ear hearing loss disability and in-service noise exposure. As the Board is required to resolve the reasonable doubt created by this relative equipoise in favor of the Veteran, entitlement to service connection for right ear hearing loss disability is warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for right ear hearing loss disability is granted. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs