Citation Nr: 1704792	
Decision Date: 02/16/17    Archive Date: 02/24/17

DOCKET NO.  16-42 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

C. Ryan, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1961 to August 1963.

This matter arose to the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran underwent a videoconference hearing with the undersigned Veterans Law Judge (VLJ) in December 2016.  A transcript of that hearing is associated with the record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Resolving all doubt in the Veteran's favor, the currently demonstrated bilateral hearing loss was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's duties.


CONCLUSION OF LAW

The criteria for the establishment of service connection for bilateral hearing loss are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2016).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran contends that he is entitled to service connection for bilateral hearing loss.  For the following reasons, the Board finds service connection is warranted for bilateral hearing loss.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including organic diseases of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

After reviewing the evidence of record, the Board finds the Veteran's reports of bilateral hearing loss related to service, and the December 2016 examiner's conclusion that the Veteran suffers from bilateral hearing loss related to service dispositive.  First, VA audiological examinations performed in July 2015 and June 2016 confirmed that the Veteran suffered from bilateral hearing loss.  Second, the Veteran and his wife cogently and credibly explained the evolution of the Veteran's hearing loss as stemming from the Veteran's in-service duties; relatedly, the Veteran has demonstrated that he was exposed to hazardous noise in service. Furthermore, in December 2016, the Veteran's private physician submitted a letter in which he concluded that the Veteran's bilateral hearing loss was more likely than not due to his military duties.  As such a nexus to service is shown.

The Board is aware that a VA audiologist provided a negative nexus opinion in July 2015.  However, the Board is affording this opinion less probative weight.  A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions.  A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight.  In this case, the examiner failed to incorporate the latest research concerning bilateral hearing loss in her analysis and discussion of the Veteran's contentions.  An examination that does so is less than adequate, and the Board should not rely upon it.  See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that the examiner may also have an obligation to discuss research in the medical literature depending on the evidence in the record at the time of the examination).

ORDER

Service connection for bilateral hearing loss is granted.



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



Department of Veterans Affairs