Citation Nr: 1454591 Decision Date: 12/11/14 Archive Date: 12/17/14 DOCKET NO. 12-20 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service in the United States Navy from October 1948 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Tiger Team at the Regional Office (RO) in Cleveland, Ohio, which denied service connection for bilateral hearing loss. The Veteran appealed the denial of service connection in this decision and the matter is now before the Board. Because of the Veteran's state of residence, however, all development and consideration of the claims since the May 2010 rating decision has been done by the RO in Chicago, Illinois, which is the RO that certified his appeal to the Board. The Veteran testified via video conference from the RO in Chicago before the undersigned Veterans Law Judge in October 2014. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The documents within these systems do not include any non-duplicative materials pertinent to the present appeal apart from a transcript of the Board hearing, which has been associated with the paper claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's duties in service, involving work in the boiler rooms of Navy ships, likely resulted in exposure to acoustic trauma. 2. After affording the Veteran the benefit of the doubt, a current bilateral hearing loss disability is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he has hearing loss in both ears due to noise exposure during service, to include working in proximity to a boiler room on a Navy vessel. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; see also 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like sensorineural hearing loss, when manifested to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, 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. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (2014); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the purposes of applying the laws 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, 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. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has also held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran currently has bilateral hearing loss for VA compensation purposes as shown by audiometric results from an April 2010 VA audiological examination. The Veteran's military service records show that his military occupational specialty (MOS) was as a Machinist Mate in the Navy and that he was stationed in and near a ship's steam room in service, thus possibly exposing him to loud noises. Thus, the Board finds that the Veteran sustained an in-service injury involving exposure to acoustic trauma. Therefore, the Board shall focus its discussion on the last requirement of service connection, namely, the causal relationship between the present bilateral hearing loss and the in-service noise exposure. The Board finds that the record is at least in equipoise as to whether the Veteran's hearing loss is related to service. The Board acknowledges that the April 2010 VA examiner noted the Veteran's statements that his hearing loss began 10 years prior, and that it had become worse over the previous 4 years. However, the Board finds Veteran's statements as to his symptoms, their onset, and the continuity of symptomatology to be credible due to the consistent nature of the facts reported during the appeal. Apart from that one medical document, the record is replete with consistent statements from the Veteran that his symptoms have been present since service. Furthermore, the Board finds the other lay statements of record, namely, statements from the Veteran's spouse and former shipmate, to be credible as to observations of the Veteran's symptoms and their belief as to the cause of those symptoms. Therefore, the Board gives high probative value to the lay evidence found in the record. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner, who reached his opinion based on lack of evidence in the claims file and the lack of proximity between the dates of service and the April 2010 examination. The Board finds this rationale to be of limited probative value because the lack of audiometric results from the Veteran's service treatment records, especially his separation examination, does not prevent establishing service connection for hearing loss. See Ledford, 3 Vet. App. at 89. Furthermore, the Veteran explained that he did not seek treatment for his hearing loss immediately after leaving service due to the fact that he thought his symptoms were normal, he was young and felt "macho," and he could brush off the concerns. Moreover, as the Veteran's representative points out, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). Lastly, the Board finds it significant that the Veteran had not filed any other claims for compensation since separating from service where he failed to mention his hearing loss, thus giving further credibility to his statements that his symptoms have been present since service. Therefore, the evidence is at least in equipoise as to whether the Veteran's current hearing loss is related to his service in the Navy. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). In the present case, the Board is granting the claim for service connection for bilateral hearing loss. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs