Citation Nr: 1407167	
Decision Date: 02/20/14    Archive Date: 03/04/14

DOCKET NO.  09-23 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from December 1959 to May 1960, and from August 1961 to November 1962. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  In August 2011, the Veteran testified at a Travel Board hearing over which the undersigned Acting Veterans Law Judge presided.  A transcript of that hearing has been associated with the claims file.

The Veteran also perfected an appeal of his claim for service connection for tinnitus.  During the pendency of this appeal a rating decision in April 2010 granted the Veteran's claim for service connection for tinnitus.  The Veteran has not disagreed with the ratings or effective date assigned, thus that matter is not on appeal.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).


FINDING OF FACT

The evidence of record establishes a nexus between the Veteran's currently diagnosed bilateral hearing loss and his military service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).





REASONS AND BASES FOR FINDING AND CONCLUSION

Given the Board's favorable disposition to grant the claim for service connection for bilateral hearing loss, the Board finds that no discussion of compliance with VA's duties to notify and to assist is required.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, to establish entitlement to compensation for a present disability, that is, service connection, a Veteran must show: (1) a present disability; (2) an 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.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. § 3.385. 

The Veteran asserts that he currently experiences hearing loss that was incurred in service and progressively worsened throughout the years.  In statements and at his August 2011 Board hearing, the Veteran reported military noise exposure due to artillery noise and grenades as an artillery surveyor, without use of hearing protection.  The Veteran denied significant post-service occupational or recreational noise exposure and reported having worked in an office for 30 years until he retired.  

In granting the Veteran's claim for service connection for tinnitus in the April 2010 rating decision, partially based on the Veteran's in-service military occupational specialty of artillery surveyor.  Accordingly, the RO has conceded in-service noise exposure significant enough to result in tinnitus.  Further, the February 2009 and December 2009 VA examination reports reflect a current diagnosis of bilateral hearing loss.  The remaining element is whether a causal relationship exists between the Veteran's currently diagnosed hearing loss and his military service.  

The record establishes such a relationship.  A July 2009 statement from the Veteran's private treating otolaryngologist noted that the Veteran had bilateral sloping moderate to severe sensorineural hearing loss, along with a history of military noise exposure from rifles, machine guns and cannons, with no other significant noise exposure.  He opined that to a reasonable degree of medical probability the Veteran's military related sensorineural hearing loss was a major contributor to his overall hearing loss.  The Board finds this opinion probative, as it provided a persuasive explanation that that to a reasonable degree of medical probability the Veteran's military related sensorineural hearing loss was a major contributor to his overall hearing loss, and was based on the Veteran's entire medical history and considered all in-service and post-service factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  

Conversely, the opinions of the February 2009 and December 2009 VA examiners conclude that it was less likely than not that the Veteran's hearing loss was caused by or the result of noise exposure in service.  The examiner based the opinion on the fact that the service separation examination showed hearing within normal limits bilaterally, such that there was no hearing damage in service.  However, the Court of Appeals for Veterans Claims has held that evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury during active service.  See Hensley v. Brown, Vet. App. 155, 159 (1993).  Accordingly, the Board cannot afford probative weight to the VA opinions.

The Board finds that the medical evidence in favor of the claim outweighs the evidence against the claim.  Service connection for a bilateral hearing loss disability is warranted.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

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ORDER

Service connection for a bilateral hearing loss disability is granted.



____________________________________________
J. MACIEROWSKI KIRBY
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs