Citation Nr: 1517364	
Decision Date: 04/22/15    Archive Date: 04/24/15

DOCKET NO.  13-22 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for hearing loss.


ATTORNEY FOR THE BOARD

A. Gibson, Associate Counsel












INTRODUCTION

The Veteran served on active duty from February 1978 to February 1981, from September 1981 to October 1983, and from April 2006 to June 2007.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Board remanded this issue in November 2013 for additional development.


FINDING OF FACT

The Veteran's hearing loss incepted during active duty service due to acoustic trauma experienced while serving in Iraq.


CONCLUSION OF LAW

The criteria for service connection for hearing loss are met.  38 U.S.C.A. §§ 1101, 1110, 1154(b), 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304(d) (2014); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection

Service connection is granted for disability resulting from disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014).  Service connection may be granted for any disease diagnosed after discharge if the evidence shows that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2014).  Entitlement to service connection benefits is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a) (2014).  

When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service."  38 U.S.C.A. § 1154(b) (West 2014).  This presumption may be rebutted only by clear and convincing evidence.  Id.  Here, although the Veteran did not directly engage in combat operations, he was stationed in Iraq and his duties involved transporting supplies between outer forward operating bases, and was not always able to obtain medical attention when out in the field.

He is currently diagnosed with bilateral hearing loss.  He asserts that it is a result of the noise from mortar and grenade attacks while out in the field delivering supplies to other bases.  A fellow soldier submitted a statement attesting to the attacks.  Acoustic trauma due to combat has been accepted as satisfying the in-service disease or injury element of claims for service-connected hearing loss.  See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993).  Based on the service records, the evidence submitted by the Veteran, and by applying 18 U.S.C.A. § 1154(b), the Board concludes that the Veteran sustained an acoustic injury during service, as is conforms with the circumstances and conditions of his service.  See also 38 C.F.R. § 3.304(d) (2014).

The September 2012 VA examiner opined that his hearing loss and tinnitus were related to noise exposure in service.  However, when asked for further clarification, in November 2012, the examiner changed her opinion, noting the Veteran's military occupational specialty (MOS) in service was as a cook, which would not have exposed him to hazardous noise.  She also indicated his hearing loss was preexisting and not aggravated by service.  This additional clarified opinion is inadequate, as it does not take into account the Veteran's statements, and it does not provide the adequate findings necessary to show that a disability was preexisting and not aggravated by service.

The Veteran has stated time and again that his hearing loss incepted while on active duty in Iraq.  The Board finds his statements credible and probative.  As he alleges hearing loss that both was caused by and has existed since combat-like operations, the Board must consider these experiences in resolving the issue of service connection.  38 U.S.C.A. § 1154(b); Reeves, supra.  The negative VA medical opinions are inadequate for adjudicatory purposes, as discussed above.  Accordingly, "clear and convincing" evidence has not been produced to rebut the presumption under 38 U.S.C.A. § 1154(b), and service connection for hearing loss is granted.
  

ORDER

The criteria for service connection for bilateral hearing loss are met.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs