Citation Nr: 1332775 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-40 150 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision. In his substantive appeal, the Veteran requested a hearing before a member of the Board, but withdrew his request in February 2012. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The weight of the evidence makes it at least as likely as not that the Veteran's bilateral hearing loss is causally or etiologically related to his military service, to include his noise exposure therein. CONCLUSION OF LAW Criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including bilateral hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Veteran is seeking service connection for bilateral hearing loss. Post-service evidence reflects that the Veteran currently has bilateral hearing loss for VA purposes which was first diagnosed in October 2010. Therefore, a current hearing disability shown. The Veteran has reported that he served as an airborne computer technician for nine years of his military service, exposing himself to hazardous noise from aircraft engines. In his notice of disagreement, the Veteran indicated that from 1983-1991 he was assigned to the flight line and AWACs. Service treatment records corroborate the Veteran's noise exposure, with a June 1991 Medical Examination-Flying Personnel noting that the Veteran had 2700 flying hours, including 300 hours in the past six months. Accordingly, noise exposure is conceded. See 38 U.S.C.A. § 1154(a). However, the presence of a current hearing loss disability and in-service noise exposure does not mandate service connection be granted. Rather, it either must be shown that the military noise exposure caused the hearing loss, or a statutory presumption must apply. The Veteran served honorably in the Air Force for more than twenty years, during which time he was clearly exposed to hazardous noise. However, there is no evidence of bilateral hearing loss being diagnosed in service or within a year of service; and the evidence of record does not suggest that the Veteran's bilateral hearing loss has been continuous since service. As such, service connection is not warranted on a presumptive basis. Nevertheless, service connection may still be established if a current hearing loss disability is linked to military noise exposure. The Board acknowledges the Veteran's belief that is hearing loss is the result of his military noise exposure. However, while he, as a lay person, is competent to report what comes to him through his senses, such as diminished hearing acuity, he lacks the medical training and expertise to provide a complex medical opinion, such as determining the etiology of his hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to link his hearing loss disability to his confirmed military noise exposure; and a competent medical opinion is required. In this case there are two medical opinions of record with regard to the etiology of the Veteran's hearing loss disability. In October 2010, the Veteran was evaluated by a private audiologist, Dr. L.I. At this appointment, the Veteran voiced his belief that he had hearing loss as a result of hazardous noise exposure during service. The Veteran also informed Dr. L.I. that he recalled being told at discharge that his hearing had shifted while in service. Audiological test results from October 2010 established that the Veteran had hearing loss in both ears for VA purposes, and Dr. L.I. opined that it was at least as likely as not that the Veteran's current hearing loss disability was caused by his hazardous noise exposure in service. She based her opinion on the Veteran's reported history of noise exposure, which the Board finds to be accurate. The Veteran was provided with a VA examination in March 2013. Audiometric testing again confirmed that the Veteran has a hearing loss disability for VA purposes. The examiner reviewed the claims file, and interviewed the Veteran; then opined that it was less likely than not that the Veteran's hearing loss disability was the result of his military service, to include noise exposure therein. As noted, there are two medical opinions of record in this case addressing the etiology of the Veteran's hearing loss disability. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, there are two medical opinions which reached opposite conclusions. However, when comparing the two opinions, the Board does not find one to be significantly more probative than the other, as both medical professionals were aware of the Veteran's history of military noise exposure and the onset of his hearing loss. Because the two opinions cannot be substantively differentiated, they are found to be in relative equipoise; and in such a situation VA regulations require that reasonable doubt be resolved in the Veteran's favor. Accordingly, service connection for bilateral hearing loss is granted. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs