Citation Nr: 1625718 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 11-09 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to October 1974. This appeal is before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, the Veteran and his wife testified at a Board hearing before the undersigned. A transcript is included in the claims file. The Board remanded the appeal in May 2014. FINDING OF FACT The Veteran has a current bilateral hearing loss disability that is the result of 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, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in a January 2011 VA examination report, his February 2011 notice of disagreement, and his June 2012 testimony before the Board, the Veteran asserts that he has current hearing loss due to in-service noise exposure including from explosions, cannon and gun fire, and helicopter, plane, and diesel truck noise. The January 2011 VA examination report further reflects that he has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Also, as noted in the Board's May 2014 remand, VA has conceded the occurrence of in-service acoustic trauma to the Veteran that has resulted in tinnitus, for which he is service-connected. On January 2011 VA examination, the Veteran reported both in-service noise exposure and that, regarding his tinnitus, he was unsure when it started as it was too long ago. The examiner, after reviewing the record, examining the Veteran, and taking his history, given several options for opinion statements regarding the Veteran's tinnitus, checked the statement: "By history tinnitus is at least as likely as not (50\50 probability) caused by or a result of military noise exposure." Regarding hearing loss, again given several options for opinion statements, the examiner checked the statement: "Given normal hearing bilaterally on discharge audiogram and NO evidence of significant shift in thresholds from induction to discharge hearing impairment is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." Significantly, however, for hearing loss, there was no option for providing a favorable opinion where there was normal hearing on discharge audiogram and no significant shift in thresholds from induction to discharge; rather, each such opinion statement option for cases where there was normal hearing on discharge audiogram and no significant shift in thresholds from induction to discharge was for an unfavorable opinion. In this regard, the Board notes that, by law, "service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service" is not precluded. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Rather, even where there is no evidence of a hearing disability until many years after separation from service, if the evidence sufficiently demonstrates a medical relationship between in-service exposure to loud noise and current hearing loss disability, it follows that the Veteran incurred an injury in service, and service connection may be established. Id. Essentially, reading the January 2011 VA examination report as a whole and presuming its consistency, it reflects the opinion that, despite the lack of in-service evidence of hearing problems, the Veteran's current post-service hearing problems were the result of in-service noise exposure; the difference between the tinnitus opinion and hearing loss opinion was that, for tinnitus, the examination report form provided an option for relating post-service hearing problems to in-service noise exposure where there was no evidence in the service treatment records reflecting hearing problems, and for hearing loss it did not. No other explanation was provided regarding this disparity. Moreover, such disparity is particularly problematic given the Veteran's report to the examiner that he was "unsure when [his tinnitus] started as it was too long ago," but the examiner nonetheless relating tinnitus to in-service noise exposure, while the Veteran's wife, in a May 2012 written statement, asserted that she noticed the Veteran's hearing problems early in her marriage, which began in 1976, approximately two years after his separation from service. Thus, given the Veteran's and his wife's history of his tinnitus and hearing loss, there would be a stronger factual basis, based on reported time of onset, for relating the Veteran's hearing loss to in-service noise exposure than there is for tinnitus. In its May 2014 remand, the Board sought clarification of the opinions. In July 2014, a VA examiner reviewed the record and opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of military noise exposure. However, while the Board, in its remand instructions, stated that the examiner must recognize that VA has conceded the Veteran experienced significant enough noise exposure in service to have caused the already service-connected tinnitus, the July 2014 VA examiner did not do this or otherwise explain the disparity in the tinnitus and hearing loss opinions of the January 2011 examination report noted above. Rather, the examiner stated, "Conceded exposure to acoustic trauma (e.g. MOS), is neither injury nor a disease, and is not sufficient to establish a line of injury or disease." The Board also notes this statement to be incorrect, as acoustic trauma qualifies an event, injury or disease in service to which a current disability may be associated for service-connection purposes. Thus the VA examiner's conclusion that "there is no evidence to show that any change in hearing was suffered," and therefore that "[a]n injury is not evidenced from the veteran's time of service, and cannot be assumed by this examiner" was not correct. In light of the January 2011 VA examination report, read as a whole and presuming its consistency that, while the Veteran did not have significant hearing threshold shifts in service, he nonetheless has current hearing problems as the result of in-service noise exposure, the Veteran's wife's statement that she noticed his hearing problems shortly after his period of service, and the lack of adequate evidence weighing against the Veteran's claim, the Board finds the evidence to be in relative equipoise. Resolving reasonable doubt in his favor, the Board finds that bilateral hearing loss is the result of in-service noise exposure. Accordingly, service connection for bilateral hearing loss must be granted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs