Citation Nr: 1342937	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  07-05 781	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from August 1963 to August 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran originally requested a hearing in his February 2007 substantive appeal; however, his request for a Board hearing was subsequently withdrawn.

In November 2010 and September 2012, the Board remanded this case for further development.  The case has returned to the Board for appellate review.


FINDING OF FACT

Bilateral hearing loss had its onset in service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1112, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran contends in his March 2006 notice of disagreement that his bilateral hearing loss resulted from his exposure to acoustic trauma from firing a 4.2 inch mortar out of a M113 armored personnel carrier in service, which he analogized to "being in a steel drum with someone beating on the sides."  In his October 2004 claim and February 2007 substantive appeal, the Veteran reported that he received testing by a VA audiologist in the early 1970's.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

The Board observes that the Veteran has bilateral hearing loss for VA compenstation purposes, see 38 C.F.R. § 3.385, and was exposed to in-service acoustic trauma.  As such, this case turns on whether the bilateral hearing loss is related to or had its onset in service.

The January 2006 VA examiner diagnosed the Veteran with moderate bilateral sensorineural hearing loss and found evidence of decibel levels which met the threshold for a disability under 38 C.F.R. § 3.385.

Jan. 2006


HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
45
60
85
LEFT
5
25
40
55
75

The Veteran's bilateral hearing loss meets the threshold for cognizable hearing loss because it is 40 decibels or greater at multiple levels bilaterally, and also because it is 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz.  Id.

The Board requested the opinion of a VHA specialist, who in a December 2013 opinion links the claimed in-service acoustic trauma to the current diagnosed bilateral hearing loss.  Specifically, he opined that the Veteran's "hearing loss is likely to have progressed and occurred sooner than it may have otherwise occurred or progressed as a result of his in service military noise exposure....[H]is military noise exposure is at least as likely as not to have had an effect on the severity of his hearing loss."  In support of his opinion, and in contravention of the January 2006 VA audiologist's negative nexus opinion based only on the Veteran's normal hearing at discharge from service, the VHA medical expert explained that temporary threshold shifts (TTS) in hearing loss transition to permanent threshold shifts (PTS) over time with repeated exposure to intense noise, and that this threshold shift is present and irreversible in inner hair cells (IHC) and would not necessarily have been shown by normal testing thresholds at separation, which can mask significant and progressive neural compromise.  The VHA medical expert also cited a relevant medical treatise in support of his analysis.

The Board finds the December 2013 VHA medical expert's opinion and rationale both competent and credible based on the author's qualifications and the reasoning of the opinion.  38 C.F.R. § 3.159(a)(1).  Moreover, the Board finds that the December 2013 VHA medical expert's opinion and rationale warrant greater probative weight than the January 2006 VA audiologist's negative nexus opinion based on the former's consideration of pertinent medical principles and disease processes beyond mere recitation of the Veteran's separation examination results.  See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to service.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs