Citation Nr: 1552359 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 14-20 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2012 of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has experienced continuous symptoms of bilateral hearing loss since his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for bilateral hearing loss, VA's duties to notify and assist are deemed fully satisfied, and there is no prejudice to the Veteran in proceeding to decide the issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Bilateral sensorineural hearing loss (organic disease of the nervous system) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection for hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater, where the auditory thresholds for at least three of these frequencies are 26 dB or greater, or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Considering the claim for service connection for bilateral hearing loss in light of the record and the governing legal authority, the Board finds that the evidence of record is at least in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, on VA audiological examinations in May 2012 and April 2014, the examiners provided a diagnosis of sensorineural bilateral hearing loss in both ears. The accompanying audiograms show bilateral hearing loss as the Veteran had 70 decibels at 3000 Hertz in both hears in May 2012 and 65 decibels at 3000 Hertz in both ears in April 2014. Second, the evidence of record reflects in-service noise exposure. The Veteran contends that he had noise exposure in active duty as an air cargo handler. See, e.g., April 2011 statement. His statements are competent and credible as his DD-214 shows that he was an air cargo handler in service. Under 38 U.S.C.A. § 1154(a), due consideration must be given to the places, types, and circumstances of the Veteran's service as shown by his service record and all medical and lay evidence. Finally, throughout the appeal period the Veteran contends that he has had hearing loss since service. See, e.g., July 2011 statement. The Board finds that the Veteran's statements are competent, credible, and probative of the presence of in-service noise exposure and diminished hearing. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Although on the July 1969 report of medical history upon separation from service, the Veteran checked the box indicating that he did not have hearing loss, he explained that during service he experienced diminished hearing acuity that over the years increased in severity. See, e.g., statements dated in July 2011, December 2012, and November 2014. In November 2014 he noted that he did not have hearing protection in service when he worked with aircrafts. Lay statements from his relatives indicate that he had problems hearing people speak since his discharge from service. Thus, the Board finds that the evidence establishes that the Veteran was exposed to significant noise during service, currently has bilateral hearing loss, and has had continuous symptoms of hearing loss since service. The Board recognizes that there are unfavorable opinions of record. On VA examination in May 2012, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of service based on the rationale that service treatment records show normal bilateral hearing and that the Veteran reported that his hearing loss began 10 years earlier. The examiner noted that the Veteran had intermittent hearing protection during service and that, although he had civilian occupational noise exposure, he used hearing protection. On VA examination in April 2014 the examiner opined that the Veteran's right and left ear hearing loss are not at least as likely as not (50% probability or greater) caused by or a result of an event in military service based on the rationale that the Veteran had normal hearing at separation, there was no significant threshold shift between his entrance and separation audiograms, and the Institute of Medicine has determined that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. As to the May 2012 VA examiner's rationale that the Veteran had normal hearing during service, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Second, the Veteran explained that he did not report to the August 2012 VA examiner that his hearing loss began 10 years earlier but in response to the examiner's question whether he had trouble hearing for at least 10 years he replied yes. See December 2012 statement in the notice of disagreement. Lastly, both VA examiners in their rationale did not consider the Veteran's complaints of ongoing diminished hearing since service. Thus, the May 2012 and April 2014 examinations are of limited probative value. The United States Court of Appeals for Veterans Claims has held that a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, considering the totality of the evidence, the Board finds that the evidence is at least equipoise on the question of a nexus between service and the current bilateral hearing loss. Resolving reasonable doubt in the Veteran's favor, the claim of service connection for bilateral hearing loss is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs