Citation Nr: 1625796 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 12-12 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to October 1964, and a period of active duty for training from January 1961 to February 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a travel board hearing before the undersigned. A copy of the transcript is of record. The record was held open for an additional 60 days. In February 2016, the Veteran's representative submitted additional evidence and waived initial RO consideration of the new evidence submitted in conjunction with his claim. 38 C.F.R. § 20.1304(c) (2015). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, a bilateral hearing loss disability is related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor a bilateral hearing loss disability was incurred in-service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In light of the fact that the Board allows the benefit sought, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary. 38 U.S.C.A. §§ 5103 , 5103A; 38 C.F.R. § 3.159. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A sensorineural hearing loss, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). For VA purposes, 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. In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran asserts that his bilateral hearing loss is the result of noise exposure during active military service. At the February 2016 Board hearing, the Veteran testified that he was exposed to acoustic trauma while serving as a gunner's mate. He reported occasionally not having hearing protection during service while exposed to acoustic trauma. He also reported multiple problems with his ears while on active duty, which consisted of having otitis media or fluid in his ears. He indicated that in-service medical personnel thought it was due to his wisdom teeth so they were removed, but he still had problems thereafter with otitis media throughout his military service. He admitted to having continuous hearing problems hearing during service and since his discharge from service. See Hearing transcript, pages 11,12. The Veteran asserts that service connection is warranted for his bilateral hearing loss. Service treatment records note that in November 1963, the Veteran was admitted to the United States Naval Hospital for swelling below the angle of the right jaw. Upon admission, the Veteran reported that at times, he felt his ears were clogged. Upon physical examination testing, there was the presence of an enlarged left submaxillary gland, which was slightly tender to palpation, an enlarged semi-tender anterior cervical node on the right located immediately inferior to the angle of the jaw, and questionable enlargement of the right parotid gland. There was also noted minimal injection of both the right and left eardrums. It was determined that the Veteran suffered from bilateral serous otitis media. It was concluded that his impacted wisdom teeth would be removed and the Veteran returned to full duty. There were no reports of hearing complaints thereafter. Upon discharge from service, clinical evaluation of the ears was normal and whispered voice testing was 15/15, as reflected on the October 1964 report of medical examination at discharge. Post service treatment records reflect a current diagnosis of bilateral hearing loss with an over twenty year history of purulent drainage from the left ear. See October 2003 and July 2010 VA outpatient treatment notes. In June 2011, the Veteran was afforded a VA examination in order to determine the etiology of his bilateral hearing loss. The examiner noted the Veteran's history as a gunner's mate during service with no hearing protection as well as history of left ear surgery. After audiological testing and review of the claims file, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner concluded that the Veteran's hearing loss is less likely as not caused by or a result of his military noise exposure as there was no evidence of an onset of hearing loss in service or within a reasonable time post service. The examiner noted the Veteran's over twenty year history of drainage from the left ear and longstanding hearing loss but concluded that such are from post active service. In February 2016, the appellant was seen by a VA physician. The physician examined the Veteran's ears, and considered his medical history to include his inservice exposure to noise as a gunner's mate. Following a review of the evidence the examiner concluded that it was more likely than not that the appellant's hearing loss was related to his inservice noise exposure. The etiology of the Veteran's hearing loss may never be known with certainty. Under the benefit-of-the-doubt rule, however, for the appellant to prevail there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Thus, resolving reasonable doubt in the Veteran's favor, service connection for a bilateral hearing loss is warranted. See 38 C.F.R. § 3.102 . ORDER Entitlement to service connection for a bilateral hearing loss is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs