Citation Nr: 1709354 Decision Date: 03/27/17 Archive Date: 04/07/17 DOCKET NO. 16-27 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION 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). The Veteran had active military service from July 1944 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss. FINDING OF FACT The Veteran's current bilateral hearing loss for VA purposes has been shown to be the result of noise exposure during military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist In this decision, the Board grants entitlement to service connection for bilateral hearing loss. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act (VCAA) of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014), is necessary. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background and Analysis The Veteran asserts that his hearing loss is due to acoustic trauma and noise exposure during military service. See 06/09/2016, VBMS, VA 9 Appeal to Board Appeals. He also contends that the condition is due to an in-service injury, in which he was in a B-24 military plane that was not pressurized and descended rapidly. The pressure on his ears caused excruciating pain, which resulted in a week-long stay at a hospital. See 06/09/2016, VBMS, Correspondence. The evidence shows a current bilateral hearing disability. See 09/24/2016, VBMS, C&P Exam (diagnosing bilateral sensorineural hearing loss). Accordingly, a present disability has been established by the evidence. A review of the Veteran's DD-Form 214 and military personnel records indicate that his military occupational specialty (MOS) was an Airplane Armourer Gunner and he was responsible for inspecting and maintaining armament systems and performed aerial gunnery work. See 06/19/2014, VBMS, Military Personnel Record. Therefore, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran's active service. Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran's bilateral hearing loss is due to noise exposure during military service. Service treatment records are negative for treatment for or a diagnosis of hearing loss. The Veteran's July 1946 separation examination revealed a normal clinical evaluation of the ears. Additionally, a whisper test conducted at that time demonstrated normal hearing bilaterally (15/15). The Veteran underwent a VA examination in November 2014, at which time bilateral hearing loss was diagnosed. The examiner concluded that the Veteran's bilateral hearing loss was not related to military service. He indicated that the separation whispered voice test was insensitive to high frequency hearing loss, which is typical of noise-induced hearing loss. Given that there was no frequency specific hearing test available at separation from military service, the examiner concluded that the etiology of the Veteran's hearing loss could not be established. The Veteran was afforded a subsequent VA examination in September 2016. The examiner concluded that the Veteran's bilateral hearing loss was at least as likely as not caused by or a result of military service. He reasoned that although frequency specific audiometrics were not available at separation or shortly thereafter, given the Veteran's history of military noise exposure as a gunner on B-24's and the related accident described by the Veteran, it was at least as likely as not that a significant component of the Veteran's hearing loss was the result of acoustic trauma suffered during his military service. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to noise exposure during his active military service. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent to testify regarding the in-service incident on the B-24 military plane. Furthermore, any possible corroborating personnel or medical records were destroyed in a fire in July 1973. See 04/23/2014, VBMS, VA 21-526 Veterans Application for Compensation or Pension, p. 7. The Board also finds that the November 2014 VA examiner failed to take into account the Veteran's MOS, history of in-service noise exposure, and the in-service incident described by the Veteran and relied on the lack of a specific high frequency hearing test available at separation to find that the Veteran's hearing loss was not related to his military service. Conversely, the September 2016 examiner took into account the Veteran's history of noise exposure while working as a gunner and the related accident described by the Veteran on the B-24 military plane. The Board finds that the September 2016 VA examiner better considered the record as a whole and contained more depth of an explanation. Thus, it is found to be the most probative evidence on the question of nexus. In view of the foregoing, and resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence is in equipoise and the benefit of the doubt is given to the Veteran. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). Accordingly, service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs